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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Not just a one-quack mind: ducks are capable of abstract thought

Newborn ducklings can differentiate between objects that are the same and objects that are different, causing scientists to rethink the place of abstract thinking.

There’s a particular loftiness to abstract thought. British philosopher and leading Enlightenment thinker John Locke asserted that “brutes abstract not” – by which he meant anything which doesn’t fall under the supreme-all-mighty-greater-than-everything category of Homo sapiens was most probably unequipped to deal with the headiness and complexities of abstract thinking.

Intelligence parameters tail-ended by “bird-brained” or “Einstein” tend to place the ability to think in abstract ways at the Einstein end of the spectrum. However, in light of some recent research coming out of the University of Oxford, it seems that the cognitive abilities of our feathery counterparts have been underestimated.

In a study published in Science, led by Alex Kacelnik – a professor of behavioural psychology – a group of ducklings demonstrated the ability to think abstractly within hours of being hatched, distinguishing the concepts of “same” and “different” with success.

Young ducklings generally become accustomed to their mother’s features via a process called imprinting – a learning mechanism that helps them identify the individual traits of their mothers. Kacelnik said: “Adult female ducks look very similar to each other, so recognising one’s mother is very difficult. Ducklings see their mothers from different angles, distances, light conditions, etc, so their brains use every possible source of information to avoid errors, and abstracting some properties helps in this job.”

It’s this hypothesised abstracting of some properties that led Kacelnik to believe that there must be more going on with the ducklings beyond their imprinting of sensory inputs such as shapes, colours or sounds.

The ability to differentiate the same from the different has previously been used as means to reveal the brain’s capacity to deal with abstract properties, and has been shown in other birds and mammals, such as parrots, pigeons, bees and monkeys. For the most part, these animals were trained, given guidance on how to determine sameness and differences between objects.

What makes Kacelnik’s ducklings special then, as the research showed, was that they were given no training at all in learning the relations between objects which are the same and object which are different.

“Other animals can be trained to respond to abstract relations such as same or different, but not after a single exposure and without reinforcement,” said Kacelnik.

Along with his fellow researcher Antone Martinho III, Kacelnik hatched and domesticated mallard ducklings and then threw them straight into an experiment. The ducklings were presented pairs of objects – either identical or different in shape or colour – to see whether they could find links and relations between the pairs.

The initial pairs they were presented served as the imprinting ones; it would be the characteristics of these pairs which the ducklings would first learn. The initial pairs involved red cones and red cylinders which the ducklings were left to observe and assimilate into their minds for 25 minutes. They were then exposed to a range of different pairs of objects: red pyramid and red pyramid, red cylinder and red cube.

What Kacelnik and his research partner found was that the ducklings weren’t imprinting the individual features of the objects but the relations between them; it’s why of the 76 ducklings that were experimented with, 68 per cent tended to move towards the new pairs which were identical to the very first pairs they were exposed to.

Put simply, if they initially imprinted an identical pair of objects, they were more likely to favour a second pair of identical objects, but if they initially imprinted a pair of objects that were different, they would favour a second pair of differing objects similar to the first.

The results from the experiment seem to highlight a misunderstanding of the advanced nature of this type of conceptual thought process. As science journalist Ed Yong suggests, there could be, “different levels of abstract concepts, from simple ones that young birds can quickly learn after limited experience, to complex ones that adult birds can cope with”.

Though the research doesn’t in any way assume or point towards intelligence in ducklings to rival that of humans, it seems that the growth in scientific literature on the topic continues to refute the notions that human being as somehow superior. Kacelnik told me: “The last few decades of comparative cognition research have destroyed many claims about human uniqueness and this trend is likely to continue.”