The High Court ruling which could break the internet

Could linking to a website be copyright infringement?

The Newspaper Licensing Agency (NLA) is a little-known victim of the disruptive forces of the internet, but in trying to fight for survival, they may just have broken the whole thing. 

Created as a private company owned by a consortium of news organisations in 1988, it oversees the granting of blanket licenses to the copyright of newspapers. Their primary purpose is to grant media monitoring agencies (companies monitor the press for clients, usually PR firms) the permissions they need to send out copies of newspaper articles without having to negotiate payment for every clipping.

For obvious reasons, this revenue stream has come under attack in the age of the internet. Why pay for permission to make a photocopy of the Guardian when you can just send your client a link to the story on Guardian.com? But the NLA decided to carry on making media monitors, even ones which operated entirely online, pay for a license, and last year sued a holdout firm, Meltwater News, in a test case.

The issue eventually made it to the Court of Appeal, where it was decided that the NLA did have the authority to force Meltwater, and other media monitors, to pay the fees. In itself, the case is small-fry – media monitoring agencies are not, after all, a massive part of the economy. But the legal reasoning behind the judgement is far more wide-ranging, and coming from the Court of Appeal, now constitutes a key part of the case law that drives the legal system of England and Wales.

In the High Court, the activities of media monitoring firms were held to require licenses because the mere act of visiting a website involves making a local copy of that page. That copy, it was decided, is normally provided under an implicit license from the site-owner, but when a media monitor visits the page, they need to pay for an explicit license. In addition, there was a second, even more damaging, claim. It was decreed that a headline was a literary work independent of its article, and that again, media monitoring firms had to pay for a license to distribute it. The High Court also ruled that Meltwater's clients – mainly PR agencies – needed their own license to browse through the links sent to them.

Much of the ruling seemed at odds with existing copyright law. The technological necessity of downloading a copy of a webpage in order to view it has historically been allowed as a "transient copy" under the Copyright, Designs and Patents Act, while titles – of which headlines are surely a subset – have never been copyrightable

Moreover, the European Union accepts that the act of visiting a website necessitates the creation of a copy. As a result, it requires that fees not be charged if the temporary copies made are "carried out for the sole purpose of enabling... a lawful use of a work". In fact, this exemption is the only one which is mandatory. Yet the Court ignored the directive, and decided instead that Meltwater's clients had made "a prima facie copyright infringement" by clicking on the links in Meltwater's briefing.

Just think about that. Clicking on a link, even one which leads to entirely legal content, could nonetheless constitute copyright infringement. The ruling puts at risk the basic skeleton of the internet.

The NLA has no plans to actually do anything but enforce their existing licensing authority online. But the whole point of case law is that it applies to more than just the participants in the original case. There's no telling who the next person to attempt to use this law will be. And of course, it's not like relying on the discretion of the authorities works out particularly well.

The law needs to be changed. But when an amendment to the Enterprise and Regulatory Reform bill was proposed last month which would do just that, the minister in charge, George Lamb, abdicated responsibility, arguing that "ultimately, the matter is for the courts to determine."

The Supreme Court won't hear the case until February 2013, leaving months of legal uncertainty. But in the end, that is besides the point. The question is not what the law does, in fact, say, but what it ought to say. The government does not need to wait for the Supreme Court to decide on the law as it stands to change the law to make it absolutely explicit that linking with a headline is not infringing, and to clarify that viewing a website does not involve making an actionable copy. It should have got moving on that the minute the case made it to the High Court; instead, it seems determined to put it off as long as possible.

Update: The NLA responds

David Pugh, the Managing Director of the NLA, writes:

Alex, I think the internet is made of sterner stuff than you suggest!

I don’t think it is in any danger of falling over any time soon as a result of the NLA v Meltwater case, which simply established that media monitoring companies that copy published content and use it to provide a paid-for ‘web cutting’ service for clients need a licence – and so do the clients paying for the service. That simply ensures a fair return for publishers.

The ruling does not mean that anyone clicking on a news website or sending a link to a friend is now a criminal!

The government has not been swayed by the minority lobby that was unhappy with the decisions of the High Court and Court of Appeal and now seeks to encourage MPs to use the Enterprise and Regulatory Reform Bill to rush through ill-conceived legislation that is not required.

I hope Pugh is right that the internet is strong enough to resist, but I disagree with his characterisation of the case. What he describes is all the NLA wanted to establish; but in doing so, a precedent was set which greatly expanded the scope of copyright online.

And while no-one involved is criminalised (this is a matter of civil, not criminal law), there is the chance this new precedent will be used in unforseen ways. As an example, earlier this year, Wonga received extraordinarily bad PR over a page they had set up on their website aimed at selling loans to students. I, as with many other journalists, linked to that page, with the headline. The precedent set by NLA v Meltwater could provide them grounds to sue for infringement.

That cannot be allowed to happen. If our current copyright legislation is open to interpretation that it does, then it is out-of-date for the internet age, and must be refreshed.

Photograph taken from Etsy user pixelparty

A sad mac. Photograph: Etsy/pixelparty

Alex Hern is a technology reporter for the Guardian. He was formerly staff writer at the New Statesman. You should follow Alex on Twitter.

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120 years on, and rugby league is still patronised as “parochial”

Even as Leeds and Hull Kingston Rovers do battle in the 2015 Challenge Cup final, the century-old conflict between rugby league and rugby union isn’t over.

When Leeds and Hull Kingston Rovers step out onto the hallowed Wembley turf on Saturday afternoon it will be a celebration, regardless of the result. The final of rugby league’s oldest competition is expected to be watched by over 85,000 fans, with countless more watching on the BBC. And the reason for celebration? This year’s Challenge Cup final falls on rugby league’s 120th birthday. 

Saturday will mark exactly 120 years to the day that the custodians of 22 clubs rendez-voused at the George Hotel in Huddersfield to split from the amateur Rugby Football Union (RFU). The teams who formed the guerrilla organisation were dependent on millworkers, miners and dockers who unlike their more affluent and privately-educated southern counterparts, could ill-afford to miss work to play rugby. As such, the Northern Football Union (which later changed its name to the Rugby Football League) announced its separation from the RFU and immediately accepted the principal of receiving payment for playing. Taking the schism as a declaration of war, the RFU struck back by issuing lifetime bans to any player associated with its northern kin. 

Neither league’s revolutionary spirit nor the promise of a pay cheque lead to a change in fortunes, though. It remains, according to one journalist, a “prisoner of geography”, ensnared by its older kin. Wembley is its parole, the chains are off, for but a short while, as league earns a pass out of its Northern confinement. Union, on the other hand, is the dominant code in terms of finances, participation numbers and global reach, while league is still viewed as a “parochial” sport. 

To understand why league is viewed as parochial, and union global, the writings of the Italian Marxist Antonio Gramsci on cultural hegemony are particularly useful. Union embodies the resource-rich and powerful historic bloc, institutionalised through its strong standing within public-schools and its big-business connections. League, on the other hand represents the downtrodden and plucky subaltern. Its agency has only stretched so far as to command superior TV figures perhaps a ringing endorsement from the masses.

In order to quell its fellow oval-chasing brethren there are examples of union shockingly suppressing the spread of league. In France the 13-a-side code had overthrown union’s dominance as hundreds of clubs switched to le treize towards the end of the 1930s. As the Second World War divided France, union bigwigs held office with members of the Nazi-collaborating Vichy government who were persuaded to outlaw rugby league once and for all. 

On 19 December 1941 a decree forced league clubs to hand over kit, stadia and funds to their union counterparts. The game has never fully recovered in France, although two Frenchman are in contention to play for Rovers on Saturday – Kevin Larroyer and John Boudebza, testament to the art of treizistance.

There are other instances of union dignitaries stifling league’s growth in places as wide-ranging as Japan, Serbia, South Africa and Italy. Examples exist in the United Kingdom too. Cambridge student Ady Spencer was banned by the RFU from playing in the Varsity Rugby Union match having enjoyed the rigours of league as a youngster in his native Warrington. The incident was subject to a parliamentary motion in 1995 being condemned as an “injustice and interference with human rights”.

But even as rugby union followed its heretic sibling into professionalism a century after the split there’s little to suggest the relationship has changed, highlighted this year through the case of Sol Mokdad. A Lebanese national, Mokdad will be watching the final in Beirut with friends, but it’s a far cry from where he was just a few months ago – locked up in a jail cell in Dubai at the behest of UAE Rugby Union (UAERU). 

“I moved to the UAE in 2006 and set up rugby league there a year later. I was arrested for fraud and for setting up a competition without the UAERU’s permission,” he tells me. “I was baffled as they’re a completely different body. It’s like the Cricket Federation demanding that they control all baseball matches. We’d just got a huge deal with Nissan to sponsor our competition which the UAERU weren’t happy about. They said I’d impersonated their president in order to get the money which was a complete lie. They weren’t too happy that we were getting a lot of exposure in western media outlets too, because I’d suggested that the UAE would be a good place to host the World Cup, that’s where it all started to go wrong.”

“I was at a corporate event when I got a phone call to say that UAERU had ordered my arrest. I tried ringing my mate George Yiasemides who was the COO of UAE Rugby League. He’d promised to help me out, but he didn’t want anything to do with me. He sold me down the river. I was chucked into a cockroach-infested cell. The bathrooms were covered in s**t  and I was locked up for 14 days with no contact with the outside world.” 

Eventually an agreement was reached and all Mokdad had to do was sign a document which would guarantee his release, subject to conditions. Easy enough right? But as he explains it wasn’t. 

“They sent me to the wrong police station and when I eventually got hold of the document they’d added conditions I hadn’t agreed too. I had to make a public apology on all of our social media, destroy all documentation and was told that I was financially liable for any damages or legal fees that may come up in the future. Any monies gained from our sponsorship was to be handed over to the UAERU, as well as having to agree to never participate in any rugby activity in the UAE again.”

Homeless, broke and jobless, Mokdad returned to his native Lebanon and he is unsure of where his future lies. “I definitely want to stay in the sport however I can. It was incredibly hard to leave what I’d created in Dubai.” he says. “I still think about it now. It was so surreal.” 

He’s backing Leeds in the final, in case you were wondering. Although it all makes Saturday’s game seem rather irrelevant if in 2015 you can be jailed for establishing a sport. Perhaps it shows more than ever, that after 120 years of separation, rugby league is still trying to shake off the shackles of its older brother.