Back in 2011, I blogged on the disturbing case of Meltwater and the Newspaper Licensing Agency. If you’ve got time, go and read the original article before coming back to this one. But, if you want the TL:DR version here it is: The appeal court decided that following a link to material on the web could be an infringement of copyright if you didn’t have permission, because doing so would inevitably create a local copy of that material in your browser, and, unless authorised, that’s an infringement. As I said at the time,
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.
I ended that post by hoping that Meltwater would appeal and that common sense would prevail. But I wasn’t holding my breath.
Now, nearly three years later, we have an update. And, fortunately, common sense has prevailed. Meltwater did appeal to the Supreme Court, and they won. And the Supreme Court itself then referred the question to the European Court Of Justice to get an EU-wide ruling. The ECJ, in turn, upheld the Supreme Court’s verdict. So the original appeal court’s ruling that, as I put it at the time, “a use can be unlawful just because the publisher says so” has been overturned. On the contrary, as the Supreme Court put it, “a use of the material is lawful, whether or not the copyright owner has authorised it, if it is consistent with EU legislation governing the reproduction right”.
The judgment is quite complex, and goes into a lot of detail, but the gist of it is that the exemption to copyright for transient copies is a lawful use in and of itself, and does not rely on any other right in order to be lawful. There may be other rights being infringed, of course, and the judgment refers to a case where they were. But, crucially, it makes the important declaration that even if other rights are being infringed, the exemption for transient copies is absolute and cannot be nullified by the publisher’s lack of consent. Which means that if the transient copies were the only possible infringement, then no infringement at all has taken place.
This has a lot of ramifications beyond the case in question. The Guardian has headlined the story, “Internet users cannot be sued for browsing the web“, which is certainly true, but there are other aspects as well. One of them is that this also settles once and for all the question of whether simply linking to publicly available material can be an infringement of copyright.
This has been addressed in the past, in other cases, but there hasn’t until now, been a definitive answer from a senior court. But this decision makes it clear that a link alone cannot be an infringement of copyright, because the link itself is not a copy of anything and the transient copies made by someone following the link are not an infringement either. (There are other, more tenuous rights, such as a “making available right”, which can, theoretically, be infringed by links in some circumstances. But if the material linked to is already public then that cannot be the case).
It also means that someone viewing or listening to a live stream online is not infringing copyright, even if the source of the stream is doing so. Because the person viewing the stream is only making transient copies, no infringement is taking place. It would be, of course, if they were making a permanent download, as well as if they were also communicating that material to the public. But both of those are an entirely different scenario. Private viewing of an illicit stream is not infringement, even when broadcasting the stream is.
So, overall, this is a sensible decision. And it’s nice to know that the courts don’t always follow a copyright maximalist agenda.