The Supreme Court case which didn't break the internet

Do you "copy" a website just by reading it? No, thankfully.

The Supreme Court has ruled on NLA v PRCA, the case which could break, or save, the internet.

Some background: the Newspaper Licensing Agency took Meltwater, a media monitoring firm to court over whether or not it had to pay licence fees for sending links to its customers. Traditionally, monitoring firms had to pay the licensing agency for the right to distribute clippings of newspapers, because photocopying a newspaper is clearly an act of copying that requires a license. But as everything moved online, that clarity became blurred; and hence, a court case was brought.

We first reported on the case after it made it to the High Court in August, when an astonishingly bad precedent was set. It was ruled that viewing a website on a computer was an act of copying which required a license, just as if you had photocopied a newspaper. Although the ruling was made with regards to a specific scenario, it was general enough to apply to general use of the internet. Clicking on a link, even one which lead to entirely legal content, would, under that ruling, constitute copyright infringement. At the time, I said it "[put] at risk the basic skeleton of the internet."

Thankfully, the case was appealed to the Supreme Court (by the PRCA, a trade body of which Meltwater is a member), where it was ruled today that temporary copies made solely for the purpose of viewing copyrighted material are not infringing. The decision extends copyright exemption to "temporary copies made for the purpose of browsing by an unlicensed end-user", according to the judgement. It is based on European law which "identified very clearly the problem which has arisen" in this case, but which didn't quite specify that this particular method of viewing was covered. Once it is accepted that that law does cover the temporary copies made in this case, "much of the argument which the courts below accepted unravels."

Writing for the majority, Lord Sumption also accepted that the previous ruling would have had wide-ranging effects:

The issue has reached this court because it affects the operation of a service which is being made available on a commercial basis. But the same question potentially affects millions of non-commercial users of the internet who may, no doubt unwittingly, be incurring civil liability by viewing copyright material on the internet without the authority of the rights owner, for example because it has been unlawfully uploaded by a third party. Similar issues arise when viewers watch a broadcast on a digital television or a subscription television programme via a set-top box.

Since the ruling has implications for European law, it has been referred to the European Courts of Justice, which will now consider the question before any final ruling is issued by the Supreme Court.

Until then, and hopefully after, you can continue to use your computers as you were. Carry on.

Photograph: Getty Images

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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Age verification rules won't just affect porn sites – they'll harm our ability to discuss sex

Relying on censorship to avoid talking about sex lets children down.

The British have a long history of censoring sex. In 1580, politician William Lambarde drafted the first bill to ban "licentious" and "hurtful... books, pamphlets, ditties, songs, and other works that promote the art of lascivious ungodly love". Last week, the UK government decided to have another crack at censorship, formally announcing that age verification for all online pornographic content will be mandatory from April 2018.

It is unclear at this point what this mandatory check will entail, but it's expected that you will need to submit your credit card details to a site before being allowed to access adult content (credit cards can’t be issued to under-18s).

The appointed regulator will almost certainly be the British Board of Film Classification who will have the authority to levy fines of up to £250,000 or shut down sites that do not comply. These measures are being directly linked to research conducted by the NSPCC, the Children’s Commissioner and the University of Middlesex in 2016, which surveyed more than 1,000 11 to 16-year-olds about viewing online pornography and found over half had accessed it. 

Digital minister Matt Hancock said age verification "means that while we can enjoy the freedom of the web, the UK will have the most robust internet child protection measures of any country in the world". And who can argue with that? No sane adult would think that it’s a good idea for children to watch hardcore pornography. And because we all agree kids should be watching Peppa Pig rather than The Poonies, the act has been waved through virtually unchallenged.

So, let’s put the issue of hardcore pornography to one side, because surely we are all in agreement. I’m asking you to look at the bigger picture. It’s not just children who will be censored and it’s not just Pornhub and Redtube which will be forced to age check UK viewers. This act will potentially censor any UK site that carries adult content, which is broadly defined by the BBFC as "that it was produced solely or principally for the purposes of sexual arousal".

I am a UK academic and research the history of sexuality. I curate the online research project www.thewhoresofyore.com, where academics, activists, artists and sex workers contribute articles on all aspects of sexuality in the hope of joining up conversations around sex that affect everyone. The site also archives many historical images; from the erotic brothel frescoes of Pompeii to early Victorian daguerreotypes of couples having sex. And yet, I do not consider myself to be a porn baron. These are fascinating and important historical documents that can teach us a great deal about our own attitudes to sex and beauty.

The site clearly signposts the content and asks viewers to click to confirm they are over 18, but under the Digital Economy Act this will not be enough. Although the site is not for profit and educational in purpose, some of the historical artefacts fit the definition of  "pornographic’" and are thereby liable to fall foul of the new laws.

And I’m not the only one; erotic artists, photographers, nude models, writers, sex shops, sex education sites, burlesque sites, BDSM sites, archivists of vintage erotica, and (of course) anyone in the adult industry who markets their business with a website, can all be termed pornographic and forced to buy expensive software to screen their users or risk being shut down or fined. I have contacted the BBFC to ask if my research will be criminalised and blocked, but was told "work in this area has not yet begun and so we are not in a position to advice [sic] you on your website". No one is able to tell me what software will need to be purchased if I am to collect viewers' credit card details, how I would keep them safe, or how much this would all cost. The BBFC suggested I contact my MP for further details. But, she doesn’t know either.

Before we even get into the ethical issues around adults having to enter their credit card details into a government database in order to look at legal content, we need to ask: will this work? Will blocking research projects like mine make children any safer? Well, no. The laws will have no power over social media sites such as Twitter, Snapchat and Periscope which allow users to share pornographic images. Messenger apps will still allow users to sext, as well as stream, send and receiving pornographic images and videos. Any tech savvy teenager knows that Virtual Private Network (VPN) software will circumvent UK age verification restrictions, and the less tech savvy can always steal their parents' credit card details.

The proposed censorship is unworkable and many sites containing nudity will be caught in the crossfire. If we want to keep our children "safe" from online pornography, we need to do something we British aren’t very good at doing; we need to talk openly and honestly about sex and porn. This is a conversation I hope projects like mine can help facilitate. Last year, Pornhub (the biggest porn site in the world) revealed ten years of user data. In 2016, Brits visited Pornhub over 111 million times and 20 per cent of those UK viewers are women. We are watching porn and we need to be open about this. We need to talk to each other and we need to talk to our kids. If you’re relying on government censorship to get you out of that tricky conversation, you are letting your children down.

The NSPCC report into children watching online pornography directly asked the participants about the effectiveness of age verification, and said the children "pointed out its limitations". When asked what intervention would most benefit them, this was the overwhelming response: "Whether provided in the classroom, or digitally, young people wanted to be able to find out about sex and relationships and about pornography in ways that were safe, private and credible." I suggest we listen to the very people we are trying to protect and educate, rather than eliminate. 

Dr Kate Lister researches the history of sexuality at Leeds Trinity University