Out-Law Analysis 5 min. read

Government must change copyright law to protect website browsing, says expert

OPINION: The UK Government is considering reform of copyright laws in the wake of the Hargreaves Review. One change that it must make when reforming copyright law is to make it clear that the act of web browsing does not require permission from copyright holders. 

This would be in line with its stated aims. In its most recent policy statement the Government said that it is "concerned ... to ease unnecessary restrictions on users of copyright works".

One such unnecessary restriction that must be removed is the restriction on browsing websites that has arisen out of recent judgements in the High Court and the Court of Appeals in a case involving media monitoring agency Meltwater and the Newspaper Licensing Agency (NLA).

The Courts found against Meltwater, ruling that, technically, users must obtain the permission of copyright owners before viewing any of their content on the internet through a web browser, even if that content is made freely accessible.

These are poor judgements that must be overturned when the case comes before the Supreme Court in 2013. Failing that, the Government should change the law.

Copyright laws should not require you to ask permission before you merely open a web browser and view something on the internet. Nor should they entitle rights holders to charge simply for the act of browsing.

The Government has an opportunity once and for all to make clear that the act of browsing itself is not an act for which a website user must ask permission. It should do so.

Web and media monitoring service providers are the businesses most affected by these recent rulings, and they should act now to challenge this situation. They should commission studies into the economic benefits of their services, highlighting the efficiencies they create for their clients in freely locating and using information and pointing out that they are exactly the kind of profitable, viable digital businesses that Government policy is meant to support.

As the Government has stated that "it wants to ensure copyright makes the greatest possible contribution to UK economic growth and to our society," these businesses can contribute to this process by pointing out that clarity as to what rights are not protected by copyright law is just as important as what rights are protected by copyright law. 

Web and media monitoring businesses offer services based on new technologies that create efficiencies for business. Instead of you trawling through the thousands of websites that may include information critical to your business or which talk about your clients, web and media monitoring businesses prepare personalised algorithms so you receive only the information that is most relevant to you. They also benefit copyright owners by driving traffic to their websites encouraging media and advertising agencies to view those sites as attractive advertising locations.

To alert you to where this information is located, these content aggregation service providers will need to send you a headline, perhaps with a 10 word extract around your search term and a link to the website where the information is located.   

Alternatively, they might just allow you access to their website and to use a specially designed search engine and then display an extract and link in response to your search query.

Since the ECJ has ruled that even an 11 word extract may in itself be copyrightable, web and media monitoring businesses must pay rights holders in order to send you that email or make the extract and link available to you via their website.

But they should not then have to pay extra licence fees simply because their customers open web browsers and view content online. This applies especially when that content is taken from a news site that is otherwise free to view for users that find the information independently of services such as Meltwater's.

Copyright has never prevented you from reading a book, although personal property laws will prevent you from stealing the book from someone else; it has never stopped you viewing a painting, although it would be trespass to enter an art gallery without permission, and it has never stopped you listening to music, though it might prevent a shop owner from playing music as you walk through a clothes store.

Copyright law cannot make you pay just for listening to a song or reading the page of a book - it should not make you pay because you have simply viewed a website. If a company does not want you to view their content, they should place it behind a payment wall or a log-in service.

Unfortunately, both the High Court and the Court of Appeals have taken a different view in the Meltwater case. They have come to the conclusion that viewing a work through a web browser is something that you have to ask permission for before doing.

They have come to this conclusion on a strained reading of the Information Society Directive. Under that Directive, rights holders are entitled to charge licence fees for temporary copies of copyright works. But the Directive also provides that rights holders may not charge fees if those temporary copies are "an integral and essential part of a technological process whose sole purpose is to enable... a lawful use of a [copyright] work." This is the only exception to copyright law that is mandatory and must be implemented by every European Union member state.

The recitals to the Information Society Directive, which do not form part of the Directive but may be used to interpret it, state that the temporary copies exception should include "acts which enable browsing ", if those acts "meet the conditions" set out in the exception.

You might think that the simple answer to all of this is for content creators and web and media monitoring providers to simply negotiate a fair price for the use of content rather than dwelling on whether payment is for making content available to clients or clients creating reproductions of content in their web browsers.

Unfortunately, the world of copyright licensing is not that simple. Web and media monitoring businesses must deal with intermediaries representing content owners. In the UK these intermediaries represent over 1,300 newspapers and have reciprocal agreements with licensing bodies all over the world. So a web and media monitoring business cannot threaten to take its business elsewhere. If they are charged too much in licence fees the provision of their services will not be economically feasible.

The purpose of copyright law is to maximise the supply, quality and diversity of original creative works. It is not to maximise revenues for rights holders. At the same time, copyright law should not restrict the development of innovative services in related technological markets that provide equally as important benefits to business, society and the consumer. It should not unduly increase the costs associated with searching for information.  

We do not need further litigation questioning the practices of online viewing and locating information that have implications for the way in which we use services such as Google News, Google Alerts and Twitter.   

Web and media monitoring companies should now lobby the UK Government and ensure that everyone's rights to read, view and listen remain outside the scope of copyright protection.

Luke Scanlon is a technology law expert at Pinsent Masons, the law firm behind Out-Law.com

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