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Wednesday, 27 July 2011

Bently slams "very disappointing" ruling in Meltwater

The IPKat's email in-box has been bulging at the seams since he posted his pieces yesterday on the two big copyright cases of Lucasfilm v Ainsworth (here) and NLA v Meltwater (here).  For one thing, he has discovered that there are a lot of angry Americans who don't like Lucasfilm.  For another, he has discovered that no less an academic than Professor Lionel Bently has had some harsh words for the Meltwater ruling. He comments thus:
"The Court of Appeal decision in NLA v Meltwater is very disappointing indeed. The Court, lacking the presence of anyone with a real knowledge of intellectual property [Alas, says Merpel, this is not the first time that has happened -- but that will have to be the subject of a separate post], has merely affirmed the reasoning of Proudman J. adding very little, if anything, of analytic value. In part, this was possible because of the peculiar form of the declaration being sought against the PRCA. The Court took advantage of the vagueness inherent in the form of order sought, merely affirming that Proudman J was right when she found that in some circumstances PRCA memners who received the Meltwater news service would themselves infringe. In so doing, the Court of Appeal ducked the difficult issue of precisely when the activities of a given PRCA member would infringe. Rather than setting the court of first instance straight, examining the law and the facts with rigour and a view to the consequences, the Court chose not to confront the difficult issues of law and its application with which it was faced. 
Firstly, the Court affirmed the judgment of first instance that, by copying the titles and short extracts of newspaper articles, PRCA memners would somtimes infringe copyright. In so doing, it referred to case law that suggested titles may sometimes be protected, but failed to explain away other statements that titles will rarely be substantial enough to constitute works
The Court appears too, to have cowered in the face of being asked to make a qualitative judgment (that titles will only be protected in exceptional circumstances) that it did not even bother to consider the consequences of the protection of titles for freedom of expression more generally. Those involved in all sorts of businesses which involved reproduction of titles of books, films, sound recordings and so on will now be left to wonder in what circumstances, if any, they will be infringing copyright. Moreover, it must be doubtful whether such a conclusion will be particularly useful to the Copyright Tribunal when deciding on what is a reasonable fee for PRCA members to pay
Secondly, the Court of Appeal failed to engage at all with the criticisms of Proudman J's decision on section 28A concerning temporary copies. There is no engagement whatsoever with the travaux behind Article 5(1) of the Information Society Directive and no attempt to engage with its purpose. 
The Court instead simply adopts Proudman J's view that a "consumptive use" such as accessing a web-page falls outside the purview of the provision. 
This means that its utility is confined merely to the making of copying by third parties in transmission systems, even though recital 33 clearly indicates that the Article is aimed at facilitating "lawful use" of a work. 
The Court seems to have missed the fundamental point that browsing -- looking at a web-page -- does not involve an infringement and is perfectly lawful (unless in breach of some sort of security provision). Article 5 is intended, amongst other things, to "enable" such legal acts of browsing: temporary copies created to facilitate such browsing are deemed non-infringing. Remarkably the Court adopted NLA's claim that these acts failed to meet any of the conditions in Article 5. 
Once again, the Court makes no reference to the consequences of such a holding. In the absence of an express or implied licence, hereafter web-users surf the internet at their peril. If a site prohibits access to certain users (commercial users for example, as many newspaper sites do), the browsers acts becomes ipso facto immediately infringing (because the copies inevitably made are outside Article 28A). For sure, very few actions will be taken against such users. But there is something fundamentally wrong with a legal regime which renders the innocent acts of many millions of citizens illegal".
Disclosure: Lionel was advising Meltwater and the PRCA in these proceedings.

This Kat's own personal views are somewhat different, not least because he thought the trial judge and the Court of Appeal got it right. However, he greatly respects Lionel's opinions and thinks that they should never be ignored. In any event, Lionel must be right that this decision will be of little use to the Copyright Tribunal when ascertaining a fair licence fee for PRCA members and he is also correct that the vast majority of titles never even come within sniffing distance of substantiality in terms of copyright protection -- but it's not easy to see precisely what weight should be given to that statement of statistical truth within the context of this case.

The position that "there is something fundamentally wrong with a legal regime which renders the innocent acts of many millions of citizens illegal" is a tricky one. Every day, on the London Underground, millions of innocent commuters push past (and occasionally through) one another when seeking to get on or off trains, overtake on the escalators and so on. Every such contact is at least potentially a civil wrong, a tort of battery, yet we are prepared to tolerate the illegality of these acts. Is internet browsing in all its varied forms the same, or different?

Do please let the IPKat know what you think!

17 comments:

Will Tovey said...

"If a site prohibits access to certain users ... the browsers acts becomes ipso facto immediately infringing"

This does seem a little worrying, not least because it then leads to the question of whether the site is just prohibiting certain use, or if it needs to explicitly authorise all other uses. Most websites don't have any sort of "Terms and Conditions" for accessing them - are we to assume there is an implied licence to use the content of such websites however we see fit? Does such an implied licence turn copyright online from opt-out to opt-in, potentially causing clashes with International treaties etc.?

If sites have copyright warnings (particularly those that say "All Rights Reserved" does this negate any implied licence - has the end user necessarily infringed that copyright by the point they've got to that text?

I imagine that in most jurisdictions this issue is dealt with by something like a private copyright exception or fair use-style defences, but it seems hard to fit this type of use into any of the UK defences (particularly with photographs etc. not covered by private study).

Aside this, there is the additional concern with "innocent infringement" that could emerge from 5(3) of the judgment read with 101-103 of the High Court judgment. This seems to suggest that by receiving an email or visiting a website, a copy of the email or website is made on the end user's computer, by the end user, and has the potential to be infringing.

Say, for example, someone emails me a photograph of a cat with an amusing caption they found on the Internet somewhere. The photograph will likely still be in copyright, and so by opening the email I have infringed copyright in that photograph, even though I didn't know what was in the email (and this may get worse when you add email clients that regularly check for and download new messages - I could be out of the country and still have authorised or caused an infringement).

It seems that the Court of Appeal completely skipped over these issues - dealing with the statements 5(1)-(5) in the judgment but missing out 5(3). While I understand why the issue of implied licences was not raised (or raised as clearly as it could have been) given that the websites involved all have terms of use, this ruling has potentially created a rather large hole in how the Internet interacts with copyright.

A better option might be to assume that the copy created on an end user's computer is made by the server, rather than the end user - accessing websites would still count as "use", so the prohibitory terms could still apply (leading to actions for breach of contract rather than copyright infringement?) but it would mean downloading would never be an infringement of copyright - while this may be the case in other jurisdictions, I imagine certain groups would not be happy if the UK changed to such a model.

As for the battery analogy, I am not a lawyer but my understanding was that that required some element of hostility, or a lack of consent - both of which are easily contestable on the Underground. There does not seem to be a similar requirement for copyright infringement (substantiality would seem unlikely to apply given we are talking about entire websites, including images, videos etc.). In any case, one would hope the law would try to avoid making every day actions illegal where possible and reasonable to do so. With battery it becomes hard to draw a line on the scale with brushing past at one end and clubbing to death at the other – no such issue of scale or degree seems to be present – either all browsing of websites without a Terms page is legal or all is illegal (aside from where there are applicable defences, explicit licences, or the work is in the public domain).

I appear to have got rather carried away here, for which I apologise; although in my defence, comments were explicitly requested.

Gareth said...

Aren't we all deemed to have consented to some (admittedly undefined) degree of battery by the very act of travelling on the Underground? Perhaps the same consent should be imputed to anyone who posts information online without using any of the available technical means to bring their T &Cs to surfers' attention.

It hardly seems right that the law should allow me to wait until now to tell you that unless your name starts with an X you do not have my permission to view this post using a computer.

Francis Davey said...

I am inclined to agree with Lionel. However, a point of information, pushing past people in an underground station will not, ordinarily, be a battery as Robert Goff LJ said in Collins v Wilcock:

"Generally speaking, consent is a defence to battery; and most of the physical contacts of ordinary life are not actionable because they are impliedly consented to by all who move in society and so expose themselves to the risk of bodily contact. So nobody can complain of the jostling which is inevitable from his presence in, for example, a supermarket, an underground station or a busy street"

There would be serious implications for the rule of law if ordinary actions carried out by the majority of the population as part of their daily lives were unlawful.

As far as I can see it is simply unarguable that a person who responds to an HTTP request with a copy of a file does not give an implied licence for the inevitable subsequent copying by any announced browser that made the request. No-one forces you to run a web server or to respond to any request. If you do, that's your problem.

Anonymous said...

Are we now all lawbreakers? If so the court-decision violate common sense, and therefore must be wrong!

Filemot said...

I sympathise with Prof Bentleys frustration. However, the court service is not there to create the law. The Hargreaves review was supposed to advise Parliament on the sort of clarity that was needed for business to continue. He opted for a futuristic and improbable private sector, one click licensing regime and thought fair use would be a bad idea. He had the evidence so we have to suffer for it. He was a journalist.
Mrs Justice Proudman had evidence and the Court of Appeal felt that she was right to hold there were *some* creative headlines, however short, that might deserve the accolade of literary work.
In the real world, we have to take a view as to whether there is Copyright or not. How do we know? It is disappointing that the court has not told us. Are we required to have evidence every time? You can have too much reliance on evidence. It isn't always good.

Anonymous said...

The Kat just says on Twitter: ‘If we're all breaking the law, the law must be wrong --so the law's wrong to set urban road speed limits? We need better reasons than this’. But, you cannot compare negligent drivers risking the loss of lives, with ordinary people searching for information on the Net!

Jeremy said...

@Anonymous 12:03

It's not the effect of the law that I'm talking about but the reason for deeming it wrong. Unauthorised parking on yellow lines is also a very widespread practice and one which doesn't risk loss of lives. Is general disobedience a reason for abolishing it?

Norman said...

The argument that "there is something fundamentally wrong with a legal regime which renders the innocent acts of many millions of citizens illegal" is premised on the view that the law is a moral code, so that anything illegal is necessarily unethical. I do share this view of the law. I take an instrumental view: the law is a practical system for ordering behaviour so as to achieve various goals, including encouraging creation and use of works. On this view, illegal acts are not necessarily immoral (as Jeremy’s example illustrates), and the fact that in practice acts that are illegal but not immoral are permitted, in the sense that they go unpunished, is entirely relevant in assessing whether the system is sound.

zhochaka said...

It seems, from what I've heard, that this involves a chain of users taking a headline, doing something with it, and passing it on.

I find myself thinking "derivative works". And now I'm wondering if, as with "fair use", my thinking is tainted by the massive American presence on the Internet.

Also, I wonder what the PR companies do with the list of headlines. Do they just pass them on to their customers, or are they looking at the story and variously quoting and summarising it. If the latter, I would say they need a licence, and maybe not a headline-only one.

I get the feeling that Meltwater would have a better argument for not needing a licence than their customers do.

Anonymous said...

‘It's not the effect of the law that I'm talking about but the reason for deeming it wrong.’

Ok, Jeremy, but to get an acceptable reason the judge must consider the effect of the judge-making law. Otherwise is the decision arbitrary and – in this case - hard to accept.

Anonymous said...

I commented on the earlier story not noticing this later strand.
My view is that the Court was techncially correct: unlike the internet this was a "closed system" with a sender and recipient both engaged in copying, and no implied licence from the copyright owner to do so. However the solution might well lie in the Copyright Tribunal. Is there any justifiable reason why the combined cost of both the orignal copyright fee paid by the clippings agency (and passed onto the customer), and the new fee the customer must pay, should exceed the original fee that customers have had to pay?

Phil said...

The ruling not only causes absurdity/doesn't work, it's wrong in law to boot. I hope this goes to the UK Supreme Court. It's very dangerous: it effectively means that if I look at a picture on the floor I'm not breaking copyright (because I'm not making a copy), but if I view in on a public server I can be held to be in breach of copyright. Just because there are technological steps involved in delivering the picture to my eyes, copyright law suddenly applies, and hard. Copyright is not meant to limit the reading of works, merely their reproduction where such reproduction is marketable/commercially relevant. Browsing a webpage must be viewed as the sort of merely transient "copying" that is not a restricted act. There is no permanence in the act and the viewer doesn't take possession of a copy with which he can then compete in the marketplace which the rightsholder is supposed to have a state-granted monopoly over.

Phil said...

Wrong in law:
The Ecommerce Directive (2001/29) says that, subject to certain conditions, copies made during transmission by a third party or in your ram, cache, etc, are not reproductions covered by copyright law. The leading case on this is called Infopaq, which summarises:
- the act is temporary;
- it is transient or incidental;
- it is an integral and essential part of a technological process;
- the sole purpose of that process is to enable lawful consumption of the work or a transmission in a network between third parties by an intermediary of a lawful use of a work or protected subject-matter; and
- the act has no independent economic significance.

The recital (explanatory notes) to this exemption is this: "The exclusive right of reproduction should be subject to an exception
to allow certain acts of temporary reproduction, which are transient or incidental reproductions, forming an integral and essential part of a technological process and carried out for the sole purpose of enabling (...) lawful use of a work or other subject-matter to be made. To the extent that they meet these conditions, this exception should include acts which enable _browsing_ as well as acts of _caching_ to take place, including (...)"

The court in Meltwater says that the copies made by the users (which, it says, are unlicensed and thus infringing copies) are not exempt. Its reasoning hinges mostly on the fourth point. It uses circular logic despite accusing the defence of using the same: "A person making a copy of a
webpage on his computer screen will not have a defence under s. 28A CDPA simply because he has been browsing. He must first show that it was lawful for him to have made the copy. The copy is not part of the technological process; it is generated by his own volition. The whole point of the receipt and copying of Meltwater News is to enable the End User to receive and read it. Making the copy is not an essential and integral part of a technological process but the end which the process is designed to achieve. Storage of the copy and the duration of that storage are matters within the End User's control. It begs the question for decision whether making the copy is to enable a lawful use of the work.

This judgement presupposes that a copy is being deliberately made by the user; therefore it 'begs the question' whether the steps leading to that are excepted or not (because this is not lawful consumption). This is of course very flawed: when viewing a .jpg or Meltwater news from a remote server, we are not creating a meaningful copy of it, any more than receiving a broadcast on your TV set. That only happens once you hit Ctrl+S. Because you're just viewing (consuming, not copying) what's placed in plain sight, any RAM/cache/whatnot is in fact incidental to lawful consumption. The court thinks that you cannot consume digital work without meaningfully copying it - because it exists once on the server and they think it can exist simultaneously on many, many different users' terminals. But that is no more 'copying' (in the copyright sense) than happens in broadcasting, and is precisely the opposite of what the law (Art 5(1) Ecommerce Directive) says.

They consider Infopaq, but all too superficially. From Infopaq: "23. According to the Højesteret, it is not disputed in this case that consent from the rightholders is not required to engage in press monitoring activity" - loading the websites so they can be read (and summarised by hand, or whatever else you want to do that doesn't store a copy of the words). Infopaq objects to the OCR and printing. I don't know if/why this was not flagged up in Meltwater. Infopaq seems poorly considered in that case.

Phil said...

Absurd:
- If the mere display of a .JPG were a copy, each re-rendering of the page (scrolling, zooming, AJAX refresh, etc) would be a separate potential infringement, wouldn't it? In fact, each refresh (60 times a second) would be creating an infringing copy.
- everyone (even rightsholders) clearly think there is no infringement possible by mere browsing, otherwise if the traffic lights system goes ahead anyone clicking on a redlighted link is immediately an infringer (because they will be making infringing copies of unlicensed content). It would then be absurd for google to even list the site. In fact Google wouldn't even be able to re-spider it from the instant it is redlighted. Infringement detection agents couldn't safely visit it. Nobody could. That is clearly not what the PRS is suggesting with their traffic light scheme, unless I'm vastly mistaken (or that is in fact their cunning plan).
- if the publisher of a work doesn't want her copy of the work to be available to the public, she can simply stop making it available to the public. If nobody has actually made a copy which they can go on using or serving to the public themselves (which I don't deny would be a restricted act), the work stops being available to the public. If I circumvent the way she sets up her property to reflect her wishes, just to be able to cast eyes upon the work, she at the very least has the Computer Misuse Act to remedy the trespass onto her server. She does *not* require copyright infringement remedies for that. Horses for courses thus combine to ensure total respect for the publisher without necessitating an expansion of copyright law that were it isn't required - viewing files on a server (nor, for reasons stated in my preceding emails, is it welcome there either).
- the picture on floor vs. picture on webpage dichotomy mentioned in my first paragraph: if it's can lawfully be retrieved and displayed (by looking at the picture on the floor, or requesting it, quite legitimately, from a server) then copyright shouldn't apply, but in Meltwater, it applies to the latter.

Any reading of the law that extends the law to where it serves no purpose at all, cannot befit the purpose of the law being read (and it sure ain't necessary in a democratic society, ney'ver).

Phil said...

Even if this were not the plain meaning of the law (which I showed above that it is), *if* for any reason a judge were to seek a purposive reading of the law (I have, for example, heard of Art 8 - right to private and family life - being applied in more surprising ways that protecting your right to browse the web without courts having the ability to find you in breach of the law for every page you visit - Branduse v Romania was about smelly prisons, ffs, not being able to forward your music, or deeplinks and headlines to your daughter - this allows the judge to use the Human Rights Act as authority for a strained, non-obvious interpretation of the law in order to respect european human rights law), I also think it be possible to read the text appropriately.

maurizio said...

I agree with Lionel that the court failed to consider the "lawful use" provision of Art. 28A. I also agree that browsing a content is a lawful act, simply because the copyright holder has no right to licence consumptive uses of her work (when I lend a book from a library, do I need a further licence to read the book??). However, UK law is ambiguous as to the meaning of "lawful use". This is because UK, unlike almost all other EU Member states, does has not have a broad exception for private copying (InfoSoc Directive, art. 5(2)(b)). Copying for private use is not clearly and unambiguously non-infinging in the UK. Hence it is no surpise that Courts tend to identify "lawful" with "authorised by the rightsholder" - which is indeed a very dangerous shift.

Anonymous said...

"Every day, on the London Underground, millions of innocent commuters push past (and occasionally through) one another when seeking to get on or off trains, overtake on the escalators and so on. Every such contact is at least potentially a civil wrong, a tort of battery, yet we are prepared to tolerate the illegality of these acts. Is internet browsing in all its varied forms the same, or different?"

In at least one respect, very different: unlike civil wrongs, infringement of copyright is a criminal act, not a civil act.

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