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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Is our obsession with class propping up the powerful?

Lynsey Hanley’s memoir Respectable: the Experience of Class attacks the sharp-elbowed bourgeoisie – but society will only be transformed by building coalitions between the middle and working classes.

Class is no longer banished from mainstream discussion, but it remains an uncomfortable topic for most mainstream media. The background to this is straightforward. The media all too often discriminate on the basis of parental wealth rather than talent: from unpaid internships to expensive postgraduate journalism qualifications, the routes into the industry are difficult to traverse without parents able to offer financial support. But most of us want to believe that our successes are personal achievements: that if we do well, it is because of our own ability, intelligence and determination. To realise that actually, you have queue-jumped, in effect, because of your parents’ bank balance: well, that would provoke insecurity and defensiveness. And so journalists and columnists are often disinclined to understand why society is stacked in the interests of some, but not others. Even raising the issue of class is felt as a personal attack.

That is one reason Lynsey Hanley is such a crucial voice. When she writes about class, she is writing about lived experience. Her new book, Respectable – the belated follow-up to her seminal Estates, published in 2007 – is a powerful investigation into the psychological impact, and cost, of shifting from class to class. She compares it to “emigrating from one side of the world, where you have to rescind your old passport, learn a new language and make gargantuan efforts if you are not to lose touch completely with the people and habits of your old life”. The case study? Hanley herself. The Personal Is Political would be as appropriate a subtitle for this book as any other.

Respectable compellingly (if sometimes erratically) weaves autobiography with academic research. Hanley grew up on a council estate in Chelmsley Wood, a 1960s ­new-build area of Solihull, in the West Midlands, a few miles from Birmingham. Her childhood, she says, would once have been labelled “respectable working class”: far removed from middle class but not “quite classically working class either” – rather, “foreman class” or “skilled tradesman class”. It feels wrong to infringe on Hanley’s right to self-define, but she does seem to have a very restrictive view of what being working class entails, so much so, that she isn’t entirely convinced she belongs. There has long been a clash between those who define class as a cultural identity and those who believe it has more to do with economic relationships (and those who think it is a combination of the two).

At Hanley’s school, “people didn’t do A-levels”. The high achievers ended up at the gas board or the Rover works and the word “university” evoked “something as distant as Mars”. Her school had 600 unfilled places, “effectively . . . abandoned by the community as much as by the local authority and by central government”. Hanley has always felt like an outsider: she struggled to make friends, found the limits of what was expected of someone from her background suffocating, and when – against the odds – she made it to sixth form, it seemed “one minute I was struggling for air, the next I felt as though I’d entered a large bubble of pure oxygen”. She looks to academics to help explain experiences she found difficult to navigate at the time. Her sense of isolation, for instance, can be illuminated by the sociologist Angela McRobbie’s exploration of “the ‘hermetically sealed’ nature of working-class culture in Birmingham”. The Uses of Literacy, Richard Hoggart’s 1957 classic, is her Bible; she feels he “could have been writing about my own childhood”.

Aged 17, Hanley was juggling five ­A-levels with four jobs: working at Greggs, selling Avon products, delivering newspapers and “making cakes and chocolates and selling them door to door”. But she became a professional journalist. When she was a teenager she visited Aldi to buy margarine and glacé cherries; now she comes back with “cold-pressed rapeseed oil and Pinot Noir”. She says “lunch” where she used to say “dinner”.

This is a well-crafted book full of insights. Hanley is determined to challenge the assumptions of left and right. She refers to socio-linguists such as Basil Bernstein, who examined how middle-class forms of communication were given preference over working-class expression but not because they were innately superior. Those who made the leap from working class to middle class found themselves assimilated by the new world. Many found it increasingly difficult to relate to the world they grew up in, and the people they grew up with.

Hanley thinks the approaches of both left and right to social mobility are problematic. Whereas the right uncritically worships the idea of “social mobility” – of parachuting the “lucky few” into the middle class without challenging the structure of society – the left, she says, believes that “social justice and social mobility are mutually exclusive”. In other words, she is questioning that old socialist maxim: “Rise with your class, not above it.”

Hanley assails those – including me – who place support for populist anti-immigration movements in a broader social context. She believes that we are downplaying the extent of racism in working-class communities, reducing it to fears over housing and jobs. We are robbing people of agency by letting individuals off the hook for their prejudices, she argues, stressing the casual racism she encountered on a daily basis. Disturbingly, she found that racism was often seen as a “sign of respectability”. She remembers sentiments along the lines of “Only common people hang out with darkies” and so on. My parents met through the Trotskyist movement; my father eventually became a white-collar local authority worker, my mother an IT lecturer at Salford University, and I was always by far the most middle-class of my friends. I’m not going to wish away the casual racism I encountered growing up in Stockport (and I’m white), but I’m not sure I’m entirely convinced by Hanley’s argument. Why is there an anti-immigration party with mass support now, yet there wasn’t one in the 1950s, when bigotry was far more open and widespread? Surely something has changed, and rising job, housing and general economic insecurity have had a role to play? And will a strategy of criticising people for voting Ukip – or even for the far right – win them over?

My main problem with Hanley’s book is this. Those of us who want to transform society so that it is not run as a racket for a tiny elite need to build a broad coalition. I’m a political activist who writes; Hanley is someone writing about reality as she has lived it. But her book surely challenges attempts to build unity between the working and middle classes. She writes of how middle-class people both hog and deny their “social and cultural capital”, and believes that those who argue in favour of a “99 Per Cent” under attack by an elite help entrench middle-class privilege. The middle classes pretend they have the same interests as the working class, while using their sharp elbows to keep them down.

I wonder if there is a third way. Abolish unpaid internships; introduce scholarships; invest in education at an early age; automatically enrol the brightest working-class young people into top universities; deal with social crises, such as the lack of affordable housing, which help destroy opportunity for the less privileged; have a proper living wage. And so on. But if those who believe in social justice fail to build a coalition of supermarket worker and schoolteacher, cleaner and junior doctor, factory worker and university lecturer . . . well, we will fail. From the low-paid against the unemployed, to private-sector against public-sector worker, to indigene against immigrant, there are enough divisions exploited by the powerful as it is.

Nonetheless, Respectable is of vital importance: a searing indictment of a chronically unjust society in which our opportunities are granted or denied from the earliest of ages. The book may not offer clear prescriptions, but it is incumbent on all of us to fight for a just and equal society – one that currently does not exist. 

Owen Jones’s Chavs: the Demonisation of the Working Class is newly republished in paperback by Verso

Respectable: The Experience of Class by Lynsey Hanley is published by Allen Lane (240pp, £16.99)

Owen Jones is a left-wing columnist, author and commentator. He is a contributing writer to the New Statesman and writes a weekly column for the Guardian. He has published two books, Chavs: the Demonisation of the Working Class and The Establishment and How They Get Away With It.

This article first appeared in the 28 April 2016 issue of the New Statesman, The new fascism