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Come Hell or High Water: Meltwater Increases the Scope of Copyright Law

Posted on May 01, 2013 by Dr. Julie Nixon  | 0 Comments

By Julie Nixon

Three years of litigation between Meltwater and the Newspaper Licensing Agency came to a head this month with the UK Supreme Court ruling that temporary copies of web pages generated from browsing the internet does not infringe the copyright of the material being viewed. Such is the importance of the issue to everyone who uses the internet, the court has referred the case to the Court of Justice of the European Union (CJEU) to ensure that the ruling applies uniformly across the EU.

In making its decision, the Supreme Court stated that by ruling otherwise they 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.”

Meltwater, a media monitoring company, provides an online service to provide brief extracts from newspaper articles, and links to the articles, against a subscriber's search terms. Meltwater produces a monitoring report to its subscribers by email, or provides subscribers with online access to the report via Meltwater’s website. The issue for the court was to consider if Meltwater only provided its reports online, whether its subscribers would still need a licence to receive them.

Temporary copies of copyright material on a computer are dealt with by a legal exemption. Where copies are automatically produced as an integral part of a technological process there is no infringement as long as there is a “lawful use of the work” with no "independent economic significance". The issue in the Meltwater case was that temporary copies were produced as a deliberate decision by a subscriber to access Meltwater’s website, there was no “lawful use” of the copies as the copyright owner had not given permission, and the copies were paid for. The Court of Appeal had previously ruled that Meltwater’s subscribers would need a licence to view online reports. 

The question for the Supreme Court was therefore to decide whether internet browsing could be covered by the “temporary copies” exception to copyright infringement. In coming to its decision the court referred to the European Directive which gave effect to the UK law on temporary copying, and held that the Directive authorised the making of copies to enable an end-user to view copyright material on the internet. Temporary copies made as a result of browsing were ruled to be an integral part of a technological process as they are basic features of modern computers, and the copies held to have no independent economic value unless subscribers downloaded or printed the material.

The court recognised the disparity between the application of copyright law to online and offline material. Viewing or reading a book does not infringe copyright, but making copies of the book will. Likewise looking a copyright material online is not infringing, yet the temporary copies produced as an incidental consequence of browsing could affect millions of online users who are unaware they may be incurring a civil liability. The court recognised this would be an unacceptable result in today’s digital age.

Clearly a policy decision, the Supreme Court has interpreted copyright law introduced before the digital revolution to be “fit for purpose” for application to the internet. It will be interesting to see if the CJEU will come to the same conclusion.

Julie

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