"Is NLA v Meltwater the end of browsing?" And the answer is ...

The chairman went to great lengths to ensure that the formalities of debate were meticulously observed

Regular readers of this weblog will recall that, following the United Kingdom Supreme Court's recent decision to grant permission to appeal against the Court of Appeal's controversial ruling on the application of the "temporary copying" exception in NLA v Meltwater [2011] EWCA Civ 890 [noted by the IPKat here; criticised by Lionel Bently here], Baker & McKenzie hosted a debate last week on the motion: "Is NLA v Meltwater the end of browsing?"  The IPKat's friend Iona Harding, who belongs to the host firm, kindly took notes and has sent the Kats a little report which we are pleased to reproduce here:

"The debate was chaired by the IPKat's own Jeremy Phillips. Andrew Murray (Professor of Law at the London School of Economics) and Neil Wilkof (IPKat, co-author of Sweet & Maxwell's Trade Mark Licensing and editorial board member of JIPLP) argued for the motion, taking on Justine Pila (Fellow and Senior Law Tutor of St Catharine's College, Oxford) and Dominic Young (ex-director and chairman of the NLA), who argued against. But what were the legal issues at the heart of the debate?

The temporary copying exception creates an exception for acts of reproduction which are transient or incidental and an integral and essential part of a technological process and whose sole purpose is to enable

(a) a transmission in a network between third parties by an intermediary, or
(b) a lawful use

of a work or other subject-matter to be made, and which have no independent economic significance (Article 5(1) Directive 2001/29 -- the InfoSoc Directive).

The main points discussed in the debate were:

1. It is a general principle of copyright law that consumption of a work is permitted, whereas reproduction is permissible. The decision in NLA v Meltwater (combined with the ECJ's judgment in Case C-5/08 Infopaq International A/S v Danske Dagblades Forening), shifts the law towards allowing digital consumption on the basis of permission, notwithstanding that hard copy consumption (reading a book for instance) has historically always been permitted.

2. The decision in Infopaq has added a requirement that, in order to qualify for exemption under Article 5(1), a copy must be deleted "automatically, without human intervention" [para 64 Infopaq].

3. The ECJ's decision in FAPL (Joined Cases C-403/08 and C-429/08 FA Premier League v QC Leisure &others; Karen Murphy v Media Protection Services Ltd) has invalidated the effect of the High Court's statement in NLA v Meltwater [2010] EWHC 3099 (Ch) at para.111, that the temporary copying exception "cannot be used to render lawful activities which would otherwise be unlawful". As a matter of policy it must be right that the temporary copying exception does not just cover authorised works.

4. When considering whether users should be required to comply with terms and conditions of publisher websites of which they are not aware (for instance because they are accessible only via a very small link at the bottom of a web page) the speakers agreed that the T&Cs may not bind if they are unusually onerous or unexpected, unless they are specifically brought to the user's attention.

5. Although the Hargreaves Review does not deal with end user consumption, this is an issue that will now need to be addressed, given the controversy created by NLA v Meltwater.

The speakers agreed that, although NLA v Meltwater has had no significant practical impact on browsing, the case raises some important questions of law and has created uncertainty in respect of what constitutes an infringement when browsing. In ITV v TV CatchUp [2011] EWHC 2977 (Pat), which was handed down the day of the debate and which the IPKat reported here, Floyd J applied FAPL in the UK to say that the position on the temporary copies exception is acte clair as set out in FAPL, which would seem to contradict NLA v Meltwater. We eagerly await the Supreme Court's view when it hears NLA v Meltwater, which is not expected to be until the end of 2012 or beginning of 2013".

The IPKat records that the chairman asked for a show of hands both at the beginning of the debate and at the end. Before it began, only one member of the audience felt that Meltwater was the end of browsing as we know it. At the end, this figure had risen to nine. However, the number of members of the audience who considered that the ruling posed no such threat rose from 19 to 26. The big losers were the "don't knows" -- a sure sign that this debate achieved its educational objective.  Merpel remains puzzled as to why it takes so long for the nation's top court to give its rulings. It's not as if the judges don't get expert guidance from the parties -- and they don't have to do all the dirty work which poor old trial judges do.