supreme court rules in favour of web browsing

In a ruling published today, the UK Supreme Court came down fairly and squarely in favour of the principle that browsing public web pages should not be considered an infringement of copyright. It still feels baffling that such an argument that should ever have had to be made, that it has taken so long for it to have been won, and that, in making this ruling, the Supreme Court had to go against verdicts both the High Court and the Court of Appeal.

But today is a good day not just for clients of media monitoring firms, but for absolutely everyone who uses the internet in this country. Lord Sumption put it very clearly, speaking for the whole court:

… if it is an infringement merely to view copyright material, without downloading or printing out, then those who browse the internet are likely unintentionally to incur civil liability, at least in principle, by merely coming upon a web-page containing copyright material in the course of browsing. This seems an unacceptable result, which would make infringers of many millions of ordinary users of the internet across the EU who use browsers and search engines for private as well as commercial purposes.

Yes. A thousand times yes. And remember, this position may seem entirely obvious, but it was opposed by the NLA in court. They argued with an apparently straight face that, when someone clicks on a link to a non-paywalled newspaper website, that person may have infringed copyright simply by browsing the page which the newspaper’s servers freely provided to them.

Frustratingly, although understandably, the Supreme Court has referred the issue up to the European Court of Justice. It’s of course possible that the ECJ might not confirm their view, but, although I am not a lawyer, the detail of the Supreme Court’s consideration of previous ECJ rulings and the relevant EU Directive looks pretty robust. More likely, that referral will merely delay the point at which these protections can come into effect.In any case, if confirmed, this ruling would appear to free all media monitoring clients, including ours, from the current licence regime and annual fees which range from just over £100 up to more than £22,000.

The NLA are clutching at two straws today, one being the delay while we wait for an ECJ ruling. The other is more substantive. As the ruling words it:

It seems very likely (although I am not deciding the point) that the licence fee chargeable to Meltwater will be substantially higher if end-users do not need a licence because on that footing the value of the rights for which Meltwater is licensed will be significantly higher.

This idea that, if clients don’t need a licence, all the fees they are no longer required by law to pay should be payable by the companies who supply them, is of course very enticing to the NLA. It would mean that they could, in revenue terms, just ignore this ruling. And if those same costs which the Supreme Court ruled against are just shifted directly onto us and our competitors we (and they) would have no choice but to pass those costs on, not least because the NLA currently charge larger organisations significantly more each year to receive our service than we charge for it ourselves. Our clients would then effectively still be paying the same fees to the NLA that they do today, irrespective of the fact that they wouldn’t need a licence to browse the web any more. Perverse.

However, not only was the legality of that approach not ruled on by the Supreme Court, it’s not clear that any argument was even heard on it. What’s more, the trend now seems to be towards balancing the legitimate commercial interests of copyright holders with an understanding what non-infringing uses of copyright material should look like. That means allowing the public to browse the web unhindered and to share information in a way that’s essential in a democratic society, and it means allowing businesses which neither compete with the newspapers nor republish their content to grow.

What’s more, no substantive arguments were heard about the licences the NLA requires us and our competitors to sign – this case was just brought by the stalwarts of the PRCA (statement here), with Meltwater (their partners for the previous cases) standing aside. Any attempt to work around the substance of today’s ruling, even in a way the Supreme Court clearly found to be superficially attractive, would surely require more court time to resolve.

Of course we agree that articles which cost news organisations to produce should not be republished without a licence: we would never do that, and we remain profoundly pro-journalism. If newspapers want to charge for their online content, they’re free to do so, and the technology is already in place and being used as a business model by some titles. But the days are surely numbered for the approach where they freely provide web pages and then try to extract fees for receiving emails with just links and headlines in them.

Sooner or, more realistically, later it seems inevitable that the courts will rule that a search engine can freely index public copyright content (and search engines’ engagement with copyright material is much broader than ours), and that no-one should have to pay for sending traffic to newspapers’ own websites. Then a final line could be drawn under this brazen attempt to take legitimate copyright protections and extend them entirely beyond their intended purpose.

Categorised in: Legal & copyright