The Supreme Court ruling which could break, or save, the internet

Do you "copy" a website just by reading it?

Last August, I wrote about the High Court ruling which could break the internet. The Newspaper Licensing Agency, which exists to grant licenses to organisations — mainly media monitors — which need to make copies of newspapers, had taken a PR company called Meltwater to court. Meltwater's crime was realising that, rather than photocopying papers and sending them to clients (which undoubtedly requires a license), they could just send them links instead.

Clearly that breaks the NLA's business model, and the agency took Meltwater to court, arguing that even the link-sharing model was a breach of copyright. Astonishingly, they won, with two arguments which betrayed a complete lack of understanding about how the internet works, and which, if they become an accepted part of UK case law, threaten the backbone of social interaction online.

The first argument the NLA made was that the act of sharing a link with a headline was itself potentially infringing on copyright. The judge concurred, arguing that crafting a newspaper headline takes skill and that this headline must be a protected work in its own right.

Traditionally, titles of creative works aren't copyrightable (although they may be trademarkable) which is why, for instance, there are multiple films called the Last Stand and multiple songs called the Look of Love. The ruling effectively makes newspaper headlines into very short poems — which may be true for some, but is unlikely to be the case for most.

The second argument was that, since the act of viewing a webpage involves creating a copy of it on your computer, Meltwater and their clients had infringed the implied license granted by the newspapers, and had to pay for an explicit right to read the content.

Quite apart from the fact that that argument is on shaky legal ground — European case law calls for a temporary copy exemption which covers precisely that type of use — it is also entirely at odds with how the internet works. It is akin to saying that, because you have to make a copy of a book on your retinas to read it, you could be sued for copyright infringement if you breach the "implicit license" that it's not to be read on holiday.

The rulings were appealed once, to the High Court, where both were upheld, and Meltwater — which has been joined by the PR industry's trade body, the PRCA — are now appealing to the Supreme Court. Sadly, they have dropped their objection to the first point of law, which means that newspaper headlines remain copyrighted and that, theoretically, you could be sued for tweeting a link to a piece with its headline if you don't have a license.

On the second point, however, the PRCA is appealing, and argues (correctly) that:

A temporary copy created on the screen of a computer simply as a technical necessity to allow the user to read the article should be considered to be within the temporary copying exception from copyright law. Reading a work should not be considered unlawful simply because one reads the work on a computer or other device as opposed to in print.

The NLA argues that the ruling is unlikely to affect anyone outside their business, but the language of the High Court's judgement is too open for that to be the case. Hopefully the Supreme Court will see sense, and dial back the power it has given copyright holders in favour of internet users nationwide. The case begins on Monday.

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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How the Night Tube could give London’s mice that Friday feeling

London Underground’s smaller inhabitants might be affected by the off-squeak service – and learn when the weekend’s coming up.

What will the mice who live in the Tube network make of the new all-night service? Half a million of them are thought to have made the London Underground their home – and will be in for a surprise when the Victoria and Central lines keep running this weekend.

The Londonist is concerned the mice “are unlikely to get any sleep” with the new Night Tube, and may move to the District line instead. Yet a number of scientists point out to the New Statesman that mice are nocturnal creatures, most likely to sleep while the lights are on and the trains are running.

So will they get on board with the change – or make a run for different platforms on other lines?

The bad news:

“When the Tube’s away, the mice will play,” is how the rhyme (almost) goes. 

Many have come to know  and even love  the mischiefs of the mice who stream off the tracks and out of the tunnels as the stations close at night, in search of discarded morsels of Maccy D. And until now, they’ve had a good few hours to conduct such galavanting in peace. But the new system means they will have to re-structure their sleep and foraging cycles, or “circadian rhythms”. 

“The presence of night trains should upset several of these entrainment factors (or zeitgebers = time givers) leading to disturbances in their behaviours,” explains Professor Patrick Nolan, from MRC Harwell, an international centre for mouse genetics. 

“When you fly across the Atlantic, for example, it takes a few days to adapt, you feel a bit groggy, don't perform as well as you usually do, don't eat well, etc. You soon adapt to the change. But if there are constant disruptions like this, the effect may be more severe and long-lasting. And this is how the schedule changes in the Underground might affect the resident mice.” 

So it's the constant switching between the week and weekend schedules that could leave the mice  and Tube drivers  most cheesed off. Agoraphobia (fear of open spaces) and photophobia (sensitivity to light) are two possible effects of the resulting anxiety, and their mating patterns and liver functions are also likely to be disturbed.

The good news:

Yet it is unlikely mice will be leaving the Night Tubes for good. 

The more time we humans have to drop our dinners, the larger the menu becomes for the mice (researchers tell me that strawberry milk and Wheetos are particularly favoured fare).

“Mice are active most of the time – so more trains at night hours will not make such a difference to them,” say the RSPCA’s wildlife officers. “In fact, it may help as it may provide more foraging opportunities.”

They’ve also faced worse before. The London Transport Museum reminds us that, during the Second World War, cats were employed to counter vermin on the network (spot the cat in the 1940s TfL workers' canteen below).


Credit: London Transport Museum

For Dr Samuel Solomon at UCL, there is plenty to suggest the mice will successfully adapt. His study of mouse reflexes shows how they respond to various visual stimuli – and can start running within one-tenth of a second. “There might be cues they pick up – if people clean the station differently on Fridays, for instance.”

The tracks’ electric current may no longer be entirely switched off (if it ever was), but their whiskers’ sensitivity to vibrations could help them juggle their escapades to fit around the Night Tube’s less frequent service.

What Dr Soloman can’t yet predict is whether the mice will start to anticipate that Friday feeling: “It will be interesting to see whether they can learn that Friday is Friday”.

All in all, the Tube mice seem well set for the Night Tube’s new challenge. Who knows, they may soon gain the confidence of their 24/7 brothers in New York – and start ordering take-out...

India Bourke is the New Statesman's editorial assistant.