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Gov must act on 'innocent' web-browsing copyright timebomb

Media monitoring biz: The time to legislate is now

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The government should legislate rather than wait for the UK or the European courts to rule on whether internet users have to pay to browse websites, a UK media monitoring business has said.

James Mackenzie, commercial director of Cutbot, told Out-Law.com that businesses and internet users could both suffer if the government waits for the courts to interpret whether the act of browsing lawfully published web pages or circulating links to those pages is legitimate.

"If Parliament fails to act, ministers risk seeing the innocent browsing of the web criminalised and legitimate UK businesses being stifled," Mackenzie said.

Last week Business Minister Norman Lamb said the government would not draft new copyright laws to make the act of website browsing explicitly legitimate and not in breach of copyright until the courts had ruled on the issue.

In a House of Commons committee session, Labour MP Fiona O'Donnell had proposed that amendments should be made to UK copyright law to explicitly enable internet users to make "any circulation" of a web address, its title, or "of another web address that redirects to that web address" where copyrighted material has been published at the permission of rights-holders without those acts infringing copyright.

The act of downloading data required to view that copyright material "and any subsequent processing of that data, including processing for display, provided that it does not result in any publication elsewhere of the work or an adaptation of the work" should also be explicitly permissible, O'Donnell's draft amendment had proposed.

Illegal tweets?

O'Donnell challenged the government to "render innocent acts legal, including the 1.3 million articles that British web users post to Twitter or Facebook each month" and explicitly create a web browsing exception into UK copyright law. She said doing so would bring UK law up to date and "realign" it with "European legislation."

The MP wanted the exceptions inserted into the draft Enterprise and Regulatory Reform Bill in order to affect changes to the Copyright, Designs and Patents Act, but Lamb said the government would not legislate on those issues until legal clarity on what acts are lawful had been provided by the courts.

"Circulation of links and tweets are not the same as transient copies for display," Lamb said. "Links have been dealt with in the Meltwater case ... We must await the outcome of the case."

"Ultimately, the matter is for the courts to determine. As the law is evolving and practice is evolving, as we use the internet more and more, to a degree, one has to wait for judicial decisions on the basis of European law to determine whether any particular act is lawful. Ultimately, they are decisions for the courts," he said.

Last year the Court of Appeal ruled that technically, users must obtain the permission of copyright owners before viewing any of their content on the internet through a web browser, even if that content is made freely accessible. It issued the ruling in a case involving media monitoring agency Meltwater and the Newspaper Licensing Agency (NLA).

Meltwater, and the Public Relations Consultancy Association (PRCA) in support of the news monitoring service, claim that the Court of Appeal was wrong to rule that internet users who browse Meltwater’s website should have to pay a licence to the NLA if they access the newspapers’ online content through that channel.

They both insist that the users’ browsing activity would amount to making only “temporary copies” of the material and that therefore, under the terms of UK copyright law, those individuals would have a defence against copyright infringement for those actions. The Supreme Court is due to rule on the issue at the beginning of next year.

Lamb said that because the issues that the Meltwater case dealt with may not be fully resolved, it would be wrong for the government to write new laws on those issues now.

However, Mackenzie said the government's current position on the lawfulness of web browsing "appears somewhat contradictory" and urged Parliament to pass changes in copyright law like the one proposed by O'Donnell in the near future.

"Lamb stated that it might be inappropriate for Parliament to change the law while a case is still pending, referring to the Supreme Court's forthcoming hearing on just one aspect of this problem," he said. "This position seems an unusual divergence from the normal principle that Parliament legislates and the courts interpret."

"Second, Lamb asserted that web browsing is already protected under the 'transient copies' section of the Copyright, Designs and Patents Act. We agree it should be protected, but the High Court and the Court of Appeal both rejected that defence last year. If the government believes everyday web browsing should be legal, they should act now to guarantee that, rather than hoping the Supreme Court or the European Court of Justice will do the right thing and then legislating to overturn their verdict if not," Mackenzie said.

O'Donnell's proposals "would have protected the public as well as those businesses which, like Cutbot, respect the fact that the content of an article is and should remain copyright," he added.

In the Meltwater case the Court of Appeal referred to EU copyright laws for guidance on the correct interpretation of whether users of Meltwater's service do need an NLA licence to browser through links Meltwater sends them.

The fine print

Under EU copyright laws, rights-holders are entitled to charge licence fees for temporary copies of copyrighted works. But the Copyright Directive also provides that rights-holders may not charge fees if those temporary copies are "an integral and essential part of a technological process whose sole purpose is to enable... a lawful use of a [copyright] work." This is the only exception to copyright law that is mandatory and must be implemented by every European Union member state.

Recitals to the Directive, which may be used to interpret the formal articles in the text, state that the temporary copies exception should include "acts which enable browsing", if those acts "meet the conditions" set out in the exception.

"There have been a number of cases in the past where Parliament has enacted legislation to deal with what it perceives to be a judicial decision which is undesirable as a matter of public policy," litigation expert Steve Keall of Pinsent Masons, the law firm behind Out-Law.com, said. "What should Parliament do when a possibly adverse decision is expected but has not yet been delivered? There is not any dispute that from a constitutional perspective, Parliament can enact legislation either before or after such a decision is delivered."

"Some might argue that waiting for the decision to be known and then enacting legislation is economically inefficient. The thinking is that this creates an avoidable period of uncertainty. Further, if the outcome is inevitable – either the court will get it 'right' or otherwise Parliament will take steps to 'correct' the court decision, then why not just do it now? On balance, it is suggested that constitutionality should trump economics. If proceedings are on foot, they should be permitted to play out and Parliament should only change the law unless it is absolutely necessary," he said.

Earlier this month technology law expert Luke Scanlon of Pinsent Masons called on the government to remove "the restriction on web browsing" that the High Court and Court of Appeal established in their Meltwater rulings.

Copyright © 2012, Out-Law.com

Out-Law.com is part of international law firm Pinsent Masons.

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