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UK Supreme Court backs news leech in copyright fight

But asks EU court to give final say on browser cache scuffle

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The UK's Supreme Court has sided with a technology company and a public relations industry group in a long-running copyright case - but bounced it up to Europe for ultimate clarification.

The decision (PDF) by the court offers a temporary respite for the Meltwater Group, a parasitic news scraper-cum-headline aggregator, after a long sequence of defeats.

Earlier decisions in UK courts established that newspaper article headlines, and extracts of articles, are protected by copyright and therefore Meltwater's clients in the PR industry would require a licence to use them.

The newspaper industry argued that aggregators who coughed their licence fees were at a disadvantage to rivals, such as Meltwater, which didn't want to pay. Meltwater had claimed that since the company operated a "headline-only" service, without providing content extracts, its customers should not need a licence from the Newspaper Licensing Agency (NLA). The Public Relations Consultants Association (PRCA), which represents many of Meltwater's customers, picked up the cudgels in 2009 after the NLA began to go after online scrapers. Many more took out NLA licences, either directly from the NLA or via licensed aggregators.

The justices stated in their ruling that nothing affects the need for Meltwater to obtain a licence. However, the court wants the status of "temporary copies" clarified in Europe. Today's judgment reflected the uncertainty over temporary digital copies in web browser caches, potentially affecting millions of end users "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."

Curiously, the Supreme Court judges state that the web wouldn't work without a browser cache: "Making of copies in the internet cache or on screen is indispensable to the correct and efficient operation of the technical processes involved in browsing," they declare. You can't browse without a local cache? ORLY?

If it is an infringement merely to view copyright material, without downloading or printing out, then those who browse the internet are likely unintentionally to incur civil liability, at least in principle, by merely coming upon a web-page containing copyright material in the course of browsing. This seems an unacceptable result, which would make infringers of many millions of ordinary users of the internet across the EU who use browsers and search engines for private as well as commercial purposes.

However the justices affirmed that the user must pay.

Nothing in article 5.1 affects the obligation of Meltwater to be licensed in order to upload copyright material onto their website or make non-temporary copies of it in some other way. At the moment, the licence fee payable by Meltwater is fixed on the basis that its customers need a licence of their own from the publishers and that the service will be supplied only to end-users who have one.

Then the ruling wanders off on a stream of thought:

It seems very likely (although I am not deciding the point) that the licence fee chargeable to Meltwater will be substantially higher if end-users do not need a licence because on that footing the value of the rights for which Meltwater is licensed will be significantly higher. The respondents have lodged an alternative claim with the Copyright Tribunal on that basis. In my view it is altogether more satisfactory that a single large licence fee should be payable representing the value to the person who puts the material onto the internet, than that tiny sums should be separately collectable from hundreds (in other cases it may be millions) of internet viewers.

What a strange ramble. In fact, the NLA royalty is set at the Copyright Tribunal - where Meltwater, quite legitimately, appealed the NLA rate last May.

Jorn Lyssegen, CEO of Meltwater, said: “We are very pleased that the Supreme Court overruled the previous rulings of the Court of Appeals and The High Court that the simple act of browsing the Internet could be copyright infringement. "This ruling is an important step in modernising the interpretation of UK copyright law and protects UK internet users from overreaching copyright collectors.”

In statement, the NLA said:

We will now await the ECJ’s judgment on this matter – which may take some time regardless of the final outcome, we welcome the fact that core NLA principles have been upheld by the Supreme Court – paid-for web monitoring services using publishers’ content require copyright licences and therefore remuneration for publishers.

We are also pleased to see that the Supreme Court acknowledged that if an end user of an alert service delivered as a web link (rather than by email) were not required to pay a licence fee, then Meltwater’s licence fee would very likely be substantially higher – a view that the NLA expressed before the Copyright Tribunal last year.

The European Court generally isn't keen on loophole-style interpretations of the Information Society Directive to trump property rights, and it recently smacked The Pirate Bay for trying one on. No rights are absolute, so although "freedom of expression" (say) is protected, it doesn't mean you can walk it anyone's house and write on their wall. ®

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