Clippings ruling could derail much online publishing, says expert

Out-Law Analysis | 28 Jul 2011 | 10:37 am | 2 min. read

OPINION: Are you reading this at work? Are you sure you are not breaking copyright law by doing so? If OUT-LAW.COM copied most websites' terms and conditions you probably would be, if the Court of Appeal is to be believed.

Yesterday it said that the users of a clippings service infringed newspaper publishers' copyrights when they clicked on links to view articles on web pages. But a fairly obscure spat over business information has the potential to derail much of the basis of online publishing.

People who look at newspaper web pages at work as part of their job could be infringing copyright, it seemed to suggest. Every minute of every working day thousands, possibly even millions, of people in the UK could be breaking the law, under this ruling.

The Court said that looking at newspaper websites necessarily involved making a copy of a page on your computer. It said that this copy is not exempt from copyright law under an exception for 'temporary copies' intended to facilitate internet browsing, meaning that every use of a web page is a copyright infringement.

Now most uses are covered, it said, by newspapers' terms and conditions, which typically say that use is permitted for 'personal and non-commercial' use.

But if OUT-LAW.COM's terms and conditions said this you would most likely be infringing copyright right now. In fact they don't (we simply ask that you don't sell our content and credit us when quoting us), but if they only gave licence for non-commercial use we would put most of our users on the wrong side of the law.

Like the business pages of newspapers, our content is largely made to help people with their jobs. Few people reading this piece on the intricacies of copyright law will be doing so in a completely 'non-commercial' capacity.

The commercial/non-commercial issue was barely touched on in the ruling itself, probably since the context of a paid-for clippings service was so clearly commercial. But we can look at what 'commercial use' means in other copyright contexts to find out what court rulings would be likely to say.

In fact courts have been pretty sticky about calling something 'non-commercial' use.

They have tended only to allow something to qualify as non-commercial use in limited circumstances. If you were at home using the information for your own interest you would qualify, but not if you were carrying out the research so that ultimately it could be used for a purpose with a commercial value, such as to enable you to provide better advice to your clients or do your job more effectively.

Academic research would qualify but probably not if you were a professional researcher or even if your research was grant-funded. It is all too easy, in the eyes of the courts, for your use of information to become 'commercial'.

The clippings case involved the Newspaper Licensing Agency (NLA), but the ramifications of its outcome is unlikely to please its membership. Do newspapers really want to ban people from reading their freely-available online editions at work?

How would the business editors of the national press feel if executives across the country felt unable to read their pages? More importantly for the newspaper companies, how would the advertising manager feel if suddenly professional people stopped looking at web pages and, therefore, stopped seeing ads?

Those newspapers that have embraced digital publishing want working people to use their material. Even those that do want direct payment, such as The Times and Sunday Times, will want to be in charge of their own paywalls, as those papers are, and are unlikely to want a body such as the NLA to be in charge of blocking access to their pages and extracting licence payments from end users.

The Court in this case did not look in detail at what 'commercial' meant in this context. There will be an appeal to the Supreme Court, so let's hope they look a little more closely at that.

Kim Walker is an intellectual property law specialist at Pinsent Masons, the law firm behind OUT-LAW.COM.

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