Sara Kelly is your eyes, ears and voice in Brussels and Westminster. Every fortnight she brings you the latest insights on policy changes, legislation and lobbying.
You. Yes you. You are infringing copyright right now.
Or at least you were.
Up until last week, merely by clicking on the link to this article you were liable for claims of copyright infringement because of the cached copies created through ordinary browsing.
It sounds a bit sensationalist doesn’t it?
Overturned by supreme court
The basis for this bold declaration comes from a ruling from the High Court and the Court of Appeal on a case between the Newspaper Licensing Agency (NLA) and Meltwater earlier this year, overturned last week by the Supreme Court.
The NLA licenses copying of newspaper content on behalf of the copyright owners. Organisations that take out licenses tend to be those that monitor, copy and circulate newspaper articles as part of their business. So this is mostly PR agencies. Meltwater is an online monitoring service that produces monitoring reports either online or via email which includes links to relevant articles, driving traffic to the Newspapers websites.
In an attempt to require Meltwater customers who choose to view a monitoring report online rather than via email to also purchase a licence the NLA took Meltwater to court.
Their argument was centred around the use of hyperlinks in online pages. So on this basis anyone who sends or receives web links, or who views public but copyright webpages – creates a “potentially infringing copy” of the publishers HTML.
In a monumental misunderstanding of how the Internet works, the High Court and the Court of Appeal ruled in their favour.
The NLA claimed the cases were designed to target monitoring agencies, but if you think these court rulings have nothing to do with you because you don’t run a newspaper clipping service, or the ruling is so ridiculous it couldn’t possibly be implemented more widely, think again.
My experience last year shows why we should all be thanking our lucky stars the Supreme Court overturned the ruling.
Were you contacted by the NLA?
Last year I, like many startups, was contacted out of the blue by an Account Manager from the NLA, helpfully highlighting all the licensing options available for those who copy copyrighted material. The Account Manager I spoke to referred to this kind of email in a phone conversation as a “new business email”.
22 Emails later
Rather than take out a licence just in case I should happen to use copyright material licensed by the NLA, like a kind of copyright insurance, which the NLA advise to do, I decided to see if I actually needed one.
Questioning whether I needed this licence led to a 6 day saga involving 3 lengthy phone calls, many discussions with an independent expert, and a chain of 22 emails which started with an Account Manager and escalated to the organisation’s Commercial Director.
Apparently, according to the new business email, you need a licence to “circulate links from a newspaper’s website”. According to the Account Manager I spoke to, this requirement has been included in ‘new business emails’ as a direct result of the High Court ruling, and is largely designed to cover organisations who employ media monitoring services like Meltwater and its competitors.
However when I asked for clarification on what constituted “circulating links” the Account Manager indicated that this meant I would need a license to send a URL in an email to a colleague.
At one point in our conversations it was indicated that the NLA had read the previous Meltwater case ruling as supporting a position that not only do you need a licence to email a URL but there is copyright in the URL address.
This would require almost every business or individual with an email system with any kind of incidental interest in current affairs reporting to take out an NLA licence.
Ultimately, after I escalated the issue, the organisation’s Commercial Director clarified that “the NLA would not require a licence for minimal volumes of internal forwarding of links to newspaper articles you describe”, although their position isn’t that these activities do not infringe copyright, merely that they currently choose not to levy a licence fee for them.
Sharing is caring
This was the danger of the High Court’s ruling. Licences should be required only for clearly identified and appropriate uses of copyright material and thankfully the Supreme Court saw that and overturned the ruling.
Now we need to keep an eye on the case as it makes it way through the European Court in Luxembourg.
Many news websites pride themselves by displaying the top table of their most shared articles, and rightly so: more link shares means more traffic, means greater advertising revenue and more opportunities to create regular readers or subscribers.
Users and businesses should not be made criminals, subject to the whim of the NLA for sending traffic to the website of any newspaper.
image credit: angusmcdiarmids