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 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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Has Brexit burst the British housing bubble?

The fall in value of the pound is having a negative impact on property prices.

The high cost of housing in the UK has almost nothing to do with supply and demand. What matters is political control. Rents are high because landlords have gained the upper hand politically. The consequences are vividly illustrated in Ken Loach’s new film focusing on inequality in Britain, I’ Daniel Blake.  As a student in the 1980s I paid £9 a week to rent a room in a shared house in Newcastle upon Tyne. Private rent was low because for decades before then rents had been regulated. It was the lifting of that regulation that meant rents could rise so that now students have to borrow vast sums of money just to have a place to live. Today’s students pay many multiples more in rent than I ever did, and millions of families with children are also struggling because they have to rent privately.

Because rents have been allowed to rise as high as landlords can get away with, the landlords have been encouraged to buy up more and more properties that were once social housing or lived in by a family, who had bought the property with a mortgage. The number of people renting privately doubled between the last two censuses of 2001 and 2011. That has never happened before. It was the end result of years of deregulation and the withdrawal of our government from representing our interests in housing. Well-regulated private renting is a benefit, but without rent regulation it becomes a social evil.

Housing prices are not determined by supply and demand because you do not have a choice about needing to be housed. Allow an unregulated market to develop when social housing is also being cut and there is no choice not to buy what is on offer, other than sleeping on the streets. Prices will go sky-high. The purchase prices for mortgage borrowers also rise to astronomical levels as first-time buyers are competing with landlords to buy properties, and so have to be able to secure a mortgage equal to the amount a landlords can wring out of people desperate for a home.

In the first blog in this series on affordable housing published by Taxpayers Against Poverty, Stephen Hill, director of C2O Futureplanners, explained: “There are over one million less affordable homes than there were in 1980. The population has grown by nearly nine million people. Incomes at the median level are flat, and secure employment is increasingly scarce.” He is correct, but the situation is even worse than that — it is not lack of housing that is the problem. Each annual census in the UK records the amount of housing that exists at each point in time. It does this by recording the number of rooms in homes over a certain size. The number of rooms per person has risen at every census since 1981.

The 2011 census was the first to count bedrooms and found that in England and Wales there were 66 million for a population of 55 million (21 million of whom were married or in a civil partnership). So even if we make the ludicrous assumption that only married people share a bed and no children use bunk-beds, there were at least 22 million bedrooms empty on census night 2011. We have not been building a huge number of new houses or flats in recent years, but we have been adding extensions on to our existing homes and so we now have more housing than we have ever had before, per person and per family. We just share it out more unfairly than we have ever done before.

If housing prices were about supply and demand then our surplus of bedrooms would result in falling prices, but this is not a free market. You are not free to buy a flat that has been left empty in London to appreciate in value by its owner. They do not want to sell, or sometimes even rent it out, and you almost certainly would not have the money even if they did.

It is in the housing market that the majority of investments are made in the UK, housing is where most wealth is held. As we become more and more economically unequal it is through housing that we most clearly see that most of us are losers while just a few (who own multiple properties) are winners. Recent UK governments have been allowing wealth and income inequalities to rise and rise.

As Fred Harrison explained in the second blog in this series, government has not only withdrawn from regulating housing rents and profits to avoid this winner-takes-all-economics — it is now even prepared to provide £2bn to buy properties that home builders can’t sell so that they don’t need to lower prices even if landlords and first-time buyers will not buy their properties. The government sees renting-seeking as a social good, and believes that the market in housing should be regulated less and less with each year that passes, other than intervening to keep prices high and rising. Meanwhile, street homelessness rises, evictions rise, the debt of mortgage holders rises, housing prices rise and a small minority of the population become richer. So how will it end?

You might have thought that prices would stop rising when landlords stopped buying properties because the return on their investments in terms of rent would not making it worth their while paying, say, one million pounds for a three-bed house in a part of London near a tube station. Suppose that the most a family could pay was £20,000 a year in rent. The landlord’s “return” on their investment would only be two per cent a year, ignoring wear-and tear and anything else that they might be able to off-set against paying tax. If the forces that were actually at play were “supply and demand” then surely prices have to stop rising when people can no longer afford the rents?

However, landlords have another return: the escalating value of the property itself. If the property is rising by five per cent a year in value then they are making a seven per cent return when they rent it out, even if annual rents are just two per cent of its value. The rise of five per cent a year is due to speculation which is itself partly fed by a belief that the government of the day will do all it can to protect their investments, but it will only do that up to a certain point.

Because it needs to raise taxes a little given the state of the national finances, the UK government is now withdrawing its support of reckless profit taking by smaller landlords. In October 2016 a group of buy-to-let landlords lost their appeal in the courts to try to continue to be able to claim their mortgage interest payments as a business expense. From 2017 only the largest of landlords who set up companies to rent out their properties will be able to continue to do that.

The government knows that the housing market is in trouble. That is why Philip Hammond, the current Chancellor, announced that their “Help to Buy” scheme (which was aimed at the very best-off of potential first time buyers) will end in December 2016. The government knows that with the risk of falling house prices in future it cannot afford the guarantees that “Help to Buy” created. “Help to Buy” schemes were the previous Chancellor, George Osborne’s biggest spending commitment. They were designed to help inflate the housing market and keep prices rising, but eventually every speculative bubble has to burst.

On 21 September the first reports of a stalling market were released under headlines that included: “Q2 UK house sales at an all-time quarterly low says Land Registry”. UK Land Registry figures now show housing prices to have fallen in London by 7% so far in 2016, with the number of sales roughly halving. Investors have stopped buying; if a recent investor wants to sell they have to do so at a loss. Nationally prices fell by 4.5%.

So what happened to the magic-money-tree? In short the pound fell in value and it has been continuing to fall ever since the UK voted to leave the EU. There was always going to be “the event” that triggered the end of speculation and it is looking more and more likely as if Brexit was that event. Once the pound begins to fall in value then any overseas investor knows that if they buy property in the UK, even if its value in pounds does not fall, it will be worth less to them in future.

Suddenly UK housing is not a safe asset. Suddenly prospective landlords actually have to try to rely on their tenants’ rent to pay back their borrowings. Suddenly housing prices change despite no great alteration in supply or demand. Suddenly the whole edifice looks unsafe, not just for the majority of young and almost all poor people in Britain, but for the large majority of the population.

It was never “supply and demand” that determined our housing costs and profits. Relying on that belief did not result in greatly improved cheaper housing for most people, but it was easy to claim that somehow tomorrow would be better if we just left it to the market — until we left it to the ever more unregulated market for too long. Housing costs, prices and supply are determined by governments, including those that shirk their responsibilities and have too much concern for the economic fortunes of the affluent few.


This is part of a series of blogs on affordable housing published by Taxpayers Against Poverty. You can read others in the series on their website or sign up to attend their seminar in Parliament on the 16th November here: