Supreme Court decides landmark Internet copyright case
Simon Stokes and Stephen Reeves look in detail at the Supreme Court’s recent decision that browsing a web page doesn’t infringe copyright.
On 17 April 2013 the Supreme Court gave its ruling on the Internet law case of Public Relations Consultants Association Limited v The Newspaper Licensing Agency Limited and Others  UKSC 18 provisionally overturning the decisions of the High Court and Court of Appeal. The Supreme Court held that end users of a news monitoring service did not need a licence from the copyright owners to view copyrighted content on a web page.
This is a case of general importance to anyone who browses the Internet, or makes content available via the Internet, but will be especially relevant to business users of media monitoring or news aggregator services.
The Supreme Court's ruling is provisional, as the relevant copyright law in the UK is based on a European Directive, and interpretation of the law must take into account the case law of the Court of Justice of the European Union (CJEU).
Although the Supreme Court felt the relevant European decisions supported its position, in light of the importance of the case for the operation of the Internet across the EU, the Supreme Court nevertheless made a referral to the CJEU for a preliminary ruling before making any order in this case.
Meltwater is the provider of a commercial online media monitoring service called Meltwater News, which is aimed at PR consultants and automatically trawls through online articles looking for keywords which are of interest to its paying business clients (end users).
The customised results of Meltwater's searches are made available to the end users in a report sent by email or via Meltwater's website.
Each search result contains summaries of the articles in which the keyword appeared. The summary contains the article headline, the opening words of the article, an extract from the body of the article showing the keywords in context, and a hyperlink to the original article.
The Newspaper Licensing Agency (NLA) is a licensing and collection agency for UK newspaper publishers which claimed that media monitoring service providers (such as Meltwater), and end users who received such services based on articles published by NLA members, needed to obtain a licence from the NLA to be entitled to do so.
Meltwater and the end users refused to purchase the relevant licences, so NLA brought proceedings against Meltwater, Meltwater's Dutch parent company and the end users (via the Public Relations Consultants Association Limited (PRCA), an industry body representing the end users) alleging copyright infringement.
The proceedings against Meltwater were eventually stayed as Meltwater purchased the relevant licence. However, the end users refused to purchase a licence, and so the High Court had to decide if end users required a licence to receive and use Meltwater's search results.
The High Court held, and on appeal the Court of Appeal agreed, that headlines are capable of constituting copyright works, and that some of the text extracts could constitute a substantial part of the articles from which they were taken and therefore could be copyright protected works.
It further held that end users were not impliedly covered by Meltwater's licence as by receiving and reading Meltwater News and by clicking on the hyperlink to the full article, the end user was making a further copy of the copyrighted work which was not covered by Meltwater's licence. Such copying therefore infringed section 17 of the Copyright, Designs and Patents Act 1988 (CDPA).
There was also copyright infringement when end users used the share function available to forward the article on to a third party, as the end users were issuing copies of the work to the public, contrary to section 18 of the CDPA. These findings were not appealed to the Supreme Court.
Temporary copy exception
Notwithstanding the above findings, the PRCA claimed that the otherwise infringing copying came within an exception in section 28A of the CDPA, which allows a party to copy copyrighted works without infringing that copyright if such copying is transient or incidental.
The High Court and the Court of Appeal disagreed and held that the copying which took place when end users received an email or accessed Meltwater's website was not transient or incidental, but was the end which the process was designed to achieve.
The PRCA appealed to the Supreme Court on whether end users would need a licence to receive Meltwater News if the reports were only made available on Meltwater's website (it was agreed on appeal that receiving an email would not come within section 28A of the CDPA as emails are permanent until the end user deletes them).
Subject to the preliminary ruling of the CJEU, the Supreme Court overturned the decision of the High Court and Court of Appeal in relation to the section 28A exception. The Supreme Court stated that it has never been an infringement for a person to view or read an infringing article in physical form.
They believed that Section 28A of the CDPA was trying to treat the viewing of copyrighted material on the Internet (though not the downloading or printing of such material) in the same way, notwithstanding that the electronic equipment used to browse the Internet incidentally involved the creation of temporary copies, such as in the transmission of the data by the ISP, by displaying the data on screen and storing the data in the Internet "cache" on the hard disk.
The Supreme Court, applying the CJEU case law, held that such acts of copying in the process of viewing a web page was covered by section 28A of the CDPA. They stated, that if such temporary copies were not covered by section 28A of the CDPA it would create an "unacceptable result" for the millions of people in the EU who browse the Internet for both private and commercial purposes and who could unintentionally incur civil liability simply by viewing a website containing pirated copyrighted material.
Implications for business
If this decision is supported by the CJEU, end users of the Internet (such as the PRCA's members) will not be required to purchase a licence to view the copyrighted material. The effect for media monitoring organisations like Meltwater may be that they have to pay a much increased licence fee, which the Supreme Court thought more satisfactory than the collection of tiny sums from hundreds, or in other cases millions, of Internet users.
More generally, online publishers may need to examine their revenue collection models focusing on the licensing of distributors and content aggregators rather than end users.
Simon Stokes, IP and Publishing partner commented: "This is a hugely important decision if followed by the Court of Justice of the EU. But it begs a lot of questions. Not least why the Supreme Court felt so strongly that a web page should be equated to a printed book. A printed book has limited circulation. A web page can receive millions of hits. And this case was about the commercial use of copyrighted material where the rights owners were willing to offer licences to end users. Where content is commercially consumed by end users in such circumstances why shouldn’t rights holders be able to receive compensation from end users as well as their distributors?”