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.

Show Hide image

Goldsmiths diversity officer Bahar Mustafa receives court summons in wake of “#KillAllWhiteMen” outcry

Mustafa will answer charges of "threatening" and "offensive/ indecent/ obscene/ menacing" communications.

In May this year, Bahar Mustafa, then diversity officer at Goldsmiths, University of London, posted a Facebook message requesting that men and white people not attend a BME Women and non-binary event. There was an immediate backlash from those also enraged by the fact that Mustafa allegedly used the hashtag #KillAllWhiteMen on social media. 

Today, Mustafa received a court summons from the Metropolitan Police to answer two charges, both of which come under the Communications Act 2003. The first is for sending a "letter/communication/article conveying a threatening message"; the second for "sending by public communication network an offensive/ indecent/ obsecene/ menacing message/ matter".

It isn't clear what communciation either charge relates to - one seems to refer to something sent in private, while the use of "public communication network" in the second implies that it took place on social media. The Met's press release states that both communciations took place between 10 November 2014 and 31 May 2015, a very broad timescale considering the uproar around Mustafa's social media posts took place in May. 

We approached the Met to ask which communications the summons refers to, but a spokesperson said that no more information could be released at this time. Mustafa will appear at Bromley Magistrates' Court on 5 November. 

Barbara Speed is a technology and digital culture writer at the New Statesman and a staff writer at CityMetric.