Arun Sudhaman 17 Apr 2013 // 11:20AM GMT
The European PR industry will welcome today's UK Supreme Court judgement, which hopefully restricts the absurd idea that browsing the internet or clicking a link constitutes copyright infringement. This, effectively, was the Newspaper Licensing Agency's (NLA) argument against media monitoring player Meltwater and UK PR trade body the PRCA. The UK High Court sided with the NLA, agreeing that online publishers can charge 'business users' for viewing Meltwater's content online. The Supreme Court has rejected this judgement, and referred the case to the European Courts of Justice (ECJ). The Supreme Court decision hinges on a technical argument, specifically that viewing a webpage does not constitute making a copy, and is allowed under European law which excepts temporary, transient acts that are an essential part of the technological process. The broader point that the Supreme Court makes is impossible to miss though. As Lord Sumption explains in his judgment, the issue "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." On this issue, the Court's eventual conclusion is hard to disagree with:
"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 thecourse 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"On this of all days, there is some irony that the PRCA, headed by arch-Thatcherite Francis Ingham, will now rely on a European court to rule in its favour. Regardless, Ingham is happy with the result. Previous decisions meant clients of media monitoring services required a licence to view online media monitoring reports. By extension, this could also apply to anyone viewing copyrighted content online. If the European court rules in accordance with its existing jurisprudence, that outcome will be averted. Instead, Meltwater and other monitoring companies are likely to pay a substantially higher licence fee, as recommended by Lord Sumption, while their clients will not require a licence to view that content online. This makes more sense. It is consistent with the online reality of how news is consumed and distributed and a much simpler proposition for the PR industry. Content owners, accordingly, will continue to charge monitoring services like Meltwater. The hope is that the spectre of the NLA going after the likes of Google News, as has been suggested, will now recede. However it seems clear that this fight still has some way to go. If the ECJ rules against it, the NLA is likely to return to the Copyright Tribunal to ensure that the same overall fee levels are applied to new media monitoring licences.