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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With everything from iPhones to clothing turning monochrome, is the West afraid of colour?

If modern design appears particularly achromatic, it only reflects the "chromophobia" which courses through the history of Western thought.

To many English observers, 1666 – the year that the poet John Dryden christened the annus mirabilis, or “year of miracles” – wasn’t especially miraculous. The country was gripped by plague and, after a hot, dry summer, the Great Fire cut a swath through London. But for Isaac Newton, then still a student, it did prove illuminating. It was in 1666 that he first used prisms to prove that white light was not a pure, indissoluble substance but was made up of different coloured rays. This was such a profound challenge to the prevailing world-view that even Newton was shaken. “I perswade my self,” he wrote, “that this Assertion above the rest appears Paradoxical, & is with most difficulty admitted.”

The belief that colours are inferior and therefore naturally subordinate, rather than fundamental, was not new in Newton’s day, nor did it end with his discovery of spectral colour. A pattern of chromophobia – an aversion to colours – courses through Western thought.

Writing in the fourth century BC, Aristotle argued: “The most attractive colours would never yield as much pleasure as a definite image without colour.” For Renaissance artists, this idea was defined by the division between disegno, drawing or design, and colore. Disegno was the foundation of any serious artistic endeavour. The preference for achromatic, “intellectual” form is also evident in architecture. Despite rock-solid evidence from the 19th century proving that Greek marble buildings and statues were once brightly painted, the classical ideal has remained anachronistically bleached. And while modernist and postmodern architects have made some use of colour, the primacy of form is unmistakable in the work of everyone from John Pawson to Zaha Hadid and Toyo Ito.

A broad cultural dislike of colour is curious because, speaking in evolutionary terms, our ability to see it has been crucial to our success. Colour vision in primates developed between 38 and 65 million years ago and makes us better able to find ripening red and yellow fruits amid green foliage. Neurons devoted to visual processing occupy much more of our neocortex real estate than those devoted to hearing or touch. Estimates vary but the Optical Society of America has suggested that it may be possible for humans to distinguish between up to ten million different shades.

And we have put this skill to good use. Bold colours have been used by many cultures to mark temporal and spiritual power. Tyrian purple, a rich, reddish dye said to resemble clotted blood, was made using an extract from two different kinds of Mediterranean shellfish and was beloved by emperors in the ancient world. A single pound of dyed cloth would cost a skilled craftsman three years’ wages and became steadily more expensive as the shellfish became rarer.

But even as such saturated colours were coveted, they also elicited disgust. The manufacture of many, including Tyrian purple, involved ingredients such as stale urine and dung. Dye and paintworks were relegated to the urban fringes. Increasingly, the wearing of bright colours was seen as vainglorious and ungodly. Protestants indicated their humility by whitewashing over jewel-coloured murals and smashing stained-glass windows in churches, and by restricting their sartorial palette predominantly to black. An echo prevails today in men’s suits: colours are largely confined to small accessories such as ties and white shirts are held up as the ne plus ultra of refined sophistication. (The late Apple co-founder Steve Jobs went one better, opting for a uniform of identical black turtlenecks.)

One reason for this distrust is that colours are difficult to conceptualise. Do they exist physically, or only in our brains? Does everyone see them the same way? Colours have been maligned as chaotic, fickle, irrational and female. The early Christian thinker St Augustine of Hippo accused them of “a seductive and dangerous sweetness”.

Our ambivalence to colour, however, has profited white. Like black, white has not been classed as a real colour since Newton. It has almost become an anti-colour. Take Apple, for example. Although Sir Jony Ive is usually credited with the company’s love for monochrome products (it was certainly Ive who brought this to its apogee), the trend predates his arrival. It can be traced back to the “Snow White” design language developed in the 1980s. Today, as consumer neophilia demands that technology be continually refreshed, Apple’s higher-end products are available in the smallest range of colours – usually just white, black and, for the Asian market, gold – while those lower down come in a slew of fruity brights.

White is not only big business for Apple. In 2014, a Californian man named Walter Liew was found guilty of 20 counts of economic espionage and sentenced to 15 years in jail for selling the secret to a very special shade of titanium-oxide white, used in everything from luxury cars to tennis courts, to Chinese firms for $28m.

Perhaps the final word on the matter should go to Le Corbusier. In 1925, the great modernist recommended that all interior walls should be whitewashed, to act as a moral and spiritual restorative. But he wasn’t just advocating white for white’s sake: although he continued to dabble with colour, he disapproved of it, too. “Let us leave to the clothes-dyers,” he wrote, “the sensory jubilations of the paint tube.”

“The Secret Lives of Colour” (John Murray) by Kassia St Clair will be published on 20 October

This article first appeared in the 26 May 2016 issue of the New Statesman, The Brexit odd squad