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.

Photo: Getty
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Rising crime and fewer police show the most damaging impacts of austerity

We need to protect those who protect us.

Today’s revelation that police-recorded crime has risen by 10 per cent across England and Wales shows one of the most damaging impacts of austerity. Behind the cold figures are countless stories of personal misery; 723 homicides, 466,018 crimes with violence resulting in injury, and 205,869 domestic burglaries to take just a few examples.

It is crucial that politicians of all parties seek to address this rising level of violence and offer solutions to halt the increase in violent crime. I challenge any Tory to defend the idea that their constituents are best served by a continued squeeze on police budgets, when the number of officers is already at the lowest level for more than 30 years.

This week saw the launch Chris Bryant's Protect The Protectors Private Member’s Bill, which aims to secure greater protections for emergency service workers. It carries on where my attempts in the last parliament left off, and could not come at a more important time. Cuts to the number of police officers on our streets have not only left our communities less safe, but officers themselves are now more vulnerable as well.

As an MP I work closely with the local neighbourhood policing teams in my constituency of Halifax. There is some outstanding work going on to address the underlying causes of crime, to tackle antisocial behaviour, and to build trust and engagement across communities. I am always amazed that neighbourhood police officers seem to know the name of every kid in their patch. However cuts to West Yorkshire Police, which have totalled more than £160m since 2010, have meant that the number of neighbourhood officers in my district has been cut by half in the last year, as the budget squeeze continues and more resources are drawn into counter-terrorism and other specialisms .

Overall, West Yorkshire Police have seen a loss of around 1,200 officers. West Yorkshire Police Federation chairman Nick Smart is clear about the result: "To say it’s had no effect on frontline policing is just a nonsense.” Yet for years the Conservatives have argued just this, with the Prime Minister recently telling MPs that crime was at a record low, and ministers frequently arguing that the changing nature of crime means that the number of officers is a poor measure of police effectiveness. These figures today completely debunk that myth.

Constituents are also increasingly coming to me with concerns that crimes are not investigated once they are reported. Where the police simply do not have the resources to follow-up and attend or investigate crimes, communities lose faith and the criminals grow in confidence.

A frequently overlooked part of this discussion is that the demands on police have increased hugely, often in some unexpected ways. A clear example of this is that cuts in our mental health services have resulted in police officers having to deal with mental health issues in the custody suite. While on shift with the police last year, I saw how an average night included a series of people detained under the Mental Health Act. Due to a lack of specialist beds, vulnerable patients were held in a police cell, or even in the back of a police car, for their own safety. We should all be concerned that the police are becoming a catch-all for the state’s failures.

While the politically charged campaign to restore police numbers is ongoing, Protect The Protectors is seeking to build cross-party support for measures that would offer greater protections to officers immediately. In February, the Police Federation of England and Wales released the results of its latest welfare survey data which suggest that there were more than two million unarmed physical assaults on officers over a 12-month period, and a further 302,842 assaults using a deadly weapon.

This is partly due to an increase in single crewing, which sees officers sent out on their own into often hostile circumstances. Morale in the police has suffered hugely in recent years and almost every front-line officer will be able to recall a time when they were recently assaulted.

If we want to tackle this undeniable rise in violent crime, then a large part of the solution is protecting those who protect us; strengthening the law to keep them from harm where possible, restoring morale by removing the pay cap, and most importantly, increasing their numbers.

Holly Lynch is the MP for Halifax. The Protect the Protectors bill will get its second reading on the Friday 20th October. 

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