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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Labour is a pioneer in fighting sexism. That doesn't mean there's no sexism in Labour

While we campaign against misogyny, we must not fall into the trap of thinking Labour is above it; doing so lets women members down and puts the party in danger of not taking them seriously when they report incidents. 

I’m in the Labour party to fight for equality. I cheered when Labour announced that one of its three Budget tests was ensuring the burden of cuts didn’t fall on women. I celebrated the party’s record of winning rights for women on International Women’s Day. And I marched with Labour women to end male violence against women and girls.

I’m proud of the work we’re doing for women across the country. But, as the Labour party fights for me to feel safer in society, I still feel unsafe in the Labour party.

These problems are not unique to the Labour party; misogyny is everywhere in politics. You just have to look on Twitter to see women MPs – and any woman who speaks out – receiving rape and death threats. Women at political events are subject to threatening behaviour and sexual harassment. Sexism and violence against women at its heart is about power and control. And, as we all know, nowhere is power more highly-prized and sought-after than in politics.

While we campaign against misogyny, we must not fall into the trap of thinking Labour is above it; doing so lets women members down and puts the party in danger of not taking them seriously when they report incidents. 

The House of Commons’ women and equalities committee recently stated that political parties should have robust procedures in place to prevent intimidation, bullying or sexual harassment. The committee looked at this thanks to the work of Gavin Shuker, who has helped in taking up this issue since we first started highlighting it. Labour should follow this advice, put its values into action and change its structures and culture if we are to make our party safe for women.

We need thorough and enforced codes of conduct: online, offline and at all levels of the party, from branches to the parliamentary Labour party. These should be made clear to everyone upon joining, include reminders at the start of meetings and be up in every campaign office in the country.

Too many members – particularly new and young members – say they don’t know how to report incidents or what will happen if they do. This information should be given to all members, made easily available on the website and circulated to all local parties.

Too many people – including MPs and local party leaders – still say they wouldn’t know what to do if a local member told them they had been sexually harassed. All staff members and people in positions of responsibility should be given training, so they can support members and feel comfortable responding to issues.

Having a third party organisation or individual to deal with complaints of this nature would be a huge help too. Their contact details should be easy to find on the website. This organisation should, crucially, be independent of influence from elsewhere in the party. This would allow them to perform their role without political pressures or bias. We need a system that gives members confidence that they will be treated fairly, not one where members are worried about reporting incidents because the man in question holds power, has certain political allies or is a friend or colleague of the person you are supposed to complain to.

Giving this third party the resources and access they need to identify issues within our party and recommend further changes to the NEC would help to begin a continuous process of improving both our structures and culture.

Labour should champion a more open culture, where people feel able to report incidents and don't have to worry about ruining their career or facing political repercussions if they do so. Problems should not be brushed under the carpet. It takes bravery to admit your faults. But, until these problems are faced head-on, they will not go away.

Being the party of equality does not mean Labour is immune to misogyny and sexual harassment, but it does mean it should lead the way on tackling it.

Now is the time for Labour to practice what it preaches and prove it is serious about women’s equality.

Bex Bailey was on Labour’s national executive committee from 2014 to 2016.