Mark's Musings

A miscellany of thoughts and opinions from an unimportant small town politician and bit-part web developer

Meltwater and the copyright wrong

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“UK Ruling Classifies Millions as Copyright Offenders” is the headline of a press release from, appropriately enough, the Public Relations Consultants Association (or PRCA as they’re usually known).

I suggest that you take a minute to read the press release, and, if you’ve got a few more minutes, the judgment itself before coming back to this article. But, if you’re in a hurry, the executive summary is fairly simple. Meltwater is an organisation which, among other things, provides a news clippings service for clients which alerts them to articles online at various news websites which may interest them. It does so by screenscraping the websites themselves and then summarising the articles by means of headlines and extracts which it then emails to the clients.

Most people would agree that this is, in all probability, a breach of copyright unless permission is given. As it happens, Meltwater does have a licence which permits them to operate this service, so any question of infringement by them is moot. What’s at issue here is whether Meltwater’s clients also need a licence in order to receive the material. The publishers say they do. The PRCA and its members say they don’t.

This case was about the copyright issues involved. In particular, it was about whether or not Meltwater’s clients are infringing the publishers’ copyright by reading the emails sent to them by Meltwater. Since any reception of an email involves making a copy of it, if the email contains copyright material then such a copy may, potentially, be an infringement.

The judgment of the court was that it is an infringement, unless permission is given. And that could have ramifications well beyond this particular case.

Copyright law does have explicit exceptions for temporary or transient copies which exist merely to facilitate the transmission or lawful use of a work. The basis behind the Meltwater judgment is that such a permission only applies to lawful use, so if a particular use is not lawful then even a temporary copy is a breach of copyright.

Given the wording of the legislation, that ruling isn’t particularly surprising. What makes it problematic is that the judges also decided that a use can be unlawful just because the publisher says so, even when the user has no opportunity to view or accept the terms by which he or she is permitted to view the material. Moreover, the judgement also concluded that a use can be lawful or unlawful solely because of the route by which the user reached the material. So, for example, if I put a notice on my website saying that you are permitted to view it if you have come from Google but not from Bing, then anyone following a link from Bing is in breach of copyright.

At its root, this case isn’t about copyright at all, it’s about contract law and whether such terms are reasonable. In reaching their conclusion, the judges didn’t address this at all (and, in fact, there is a separate case in progress which does address this particular issue), so in one sense this isn’t anywhere near as alarming as the PRCA press release would have us think. But it does, though, show up a significant weakness in copyright law itself. As this ruling demonstrates, the law allows publishers of online material to use copyright as a method of enforcing a contract in a way that they would not be able to do with non-electronic material.

With printed material, it’s impossible to unilaterally impose a contract which permits some people to read it and not others. If I wrote a book and sold it as paper copies, then I couldn’t make it lawful for Albert to read it but not Brian. I couldn’t stop Brian purchasing a copy from a retailer in the normal way, and I can’t stop Albert passing his copy to Brian either as a loan, as a gift or by reselling it to him.

If I put the book online, though (or sold it via Kindle or any other e-book format) then things are different. It’s impossible (at least, in all practical circumstances as far as computers are concerned) to read an electronic version of something without making at least a temporary copy of it. But making a copy is only permissible if authorised or if it falls within one of the exemptions, such as the right to make temporary copies for lawful use. So, if I put a notice on my website (or on the Kindle copy) saying that “Persons by the name of Brian are not permitted to view this material”, then, unless he can make use of different statutory exemption, Brian cannot lawfully make a copy – either permanent or temporary – in order to be able to read it.

Equally, in the Meltwater case, if Meltwater were operating an old-fashioned clippings service by which they made photocopies of news articles and distributed them to their clients then, providing Meltwater had a licence to make and distribute the copies (which, in this case, they do), their clients cannot be in breach of any intellectual property rights simply by receiving and reading the clippings. But, because the clippings are being sent electronically, the recipients must make copies to view them and therefore they are in breach of copyright if the publishers say that they cannot do so without having a licence themselves.

That’s clearly absurd. Copyright law as regards electronic material is complicated, not least because many uses of electronic material are impossible without making multiple copies of it. But the exemption for transient or temporary copies is intended to address that, and the underlying principle is that the end user of copyright material should be in the same position whether the material is held by them in physical or electronic format. This judgment clearly breaks that principle, since it puts users of electronic material at a disadvantage compared to users of physical material. You might want to bear that in mind the next time you decide whether to buy the next bestseller in paperback or as an e-book.

It’s possible that this will be overturned by the Supreme Court, and common sense would suggest that it should be. The High Court judges (and those in courts below it) have based their judgments on the letter of the law rather than considering its effect, which is fair enough – they can, quite reasonably, argue that if Parliament doesn’t want this particular gotcha to exist then they should take more care over their drafting – but the Supreme Court has a little more flexibility. But, either way, this is yet another aspect of flawed copyright law which really needs to be addressed as part of the government’s response to the Hargreaves Review.

Update: The case did go to appeal, and Meltwater won. Here’s some more on that…