Thursday, 28 July 2011

The long arm of digital copyright

[Note significant changes as a result of the Supreme Court judgment and CJEU judgment in NLA v Meltwater, discussed here, which reverse the judgment of the Court of Appeal described here. (9 June 2014)]

The NLA v Meltwater case decided yesterday by the English Court of Appeal illustrates how, as an accidental by-product of digital technology, the reach of copyright is significantly greater online than it ever was in the hard copy world. 

The Court of Appeal found that public relations agency recipients of Meltwater’s e-mail and online news clippings service would not be protected from copyright infringement by a licence from the Newspaper Licensing Agency that covered Meltwater’s scraping and distribution activities. 

The agencies themselves, when receiving and reading the e-mails or accessing Meltwater’s website, engaged in a separate activity restricted by copyright, so would require their own licence.  The same applied when they followed links from the e-mails so as to access newspaper websites, since the newspaper websites’ terms and conditions permitted only personal and/or non-commercial use.

The appeal was brought by the Public Relations Consultants Association, which had intervened in proceedings brought by the NLA against Meltwater.  The PRCA’s detailed defences were emphatically rejected by the Court of Appeal.  But the PRCA also ran a more fundamental argument that goes to the heart of the increasingly apparent problems with the scope of digital copyright. 

The PRCA argued in effect that copyright online should be functionally equivalent to copyright offline: 
“[PRCA’s] starting point is the press clippings agency; whilst the agency requires a licence from the Publishers to make the 'hard' copies they supply to their clients, the latter do not require a licence to receive and read them. PRCA contend that in an online environment a licence to the provider of a service, Meltwater, must encompass the inevitable copies which will be made when that service is received and read by the end-user. In other words the provision and receipt of the service are but opposite sides of the same coin. They accept that one must be licensed but deny the right of the Publishers to insist that both are licensed.”

This ‘double licensing’ argument was rejected by the Court of Appeal, which analysed the copies made by a recipient of a Meltwater e-mail and concluded that they were separate activities, not two sides of the same coin:
“The copies created on the end-user's computer are the consequence of the end-user opening the email containing Meltwater News, searching the Meltwater website or accessing the Publisher's website by clicking on the link provided by Meltwater . They are not the same copies as those sent by Meltwater. PRCA admitted as much in its defence and the agreed statement of facts. For these reasons I consider that the double licensing contention is unmaintainable.”
This conclusion illustrates a general difference between digital and pre-digital copyright. 

In the pre-digital environment no potentially infringing act was committed by reading a book or a newspaper, by opening a letter, or by listening to music on a vinyl record.  These activities were beyond the reach of copyright, since no copy was generated by doing so.  So no licence was required to do them and they were outside the control of the rightsholder.
Things are different in the digital world.  Once it became accepted that the transient copies created in the RAM of a computer count as copies for copyright purposes (a theory developed to enable a copyright owner to control the running of a computer program), then the very act of reading, opening, viewing or listening to anything on a computer automatically fell within the scope of copyright and became something that the copyright owner could control.  This position has been reinforced by the more recent acceptance that images on a computer screen also count as copies for copyright purposes.

None of these extensions in scope was envisaged by the original legislatures.  They happened without any change in the law.  They are a by-product of the fact that it is to all intents and purposes impossible to do anything in a digital environment without creating copies.  The law remained the same, but its effective scope in the digital environment was extended by the change in technology. 
This accidental extension of the reach of copyright has since become entrenched in later legislation such as the EU Copyright in the Information Society Directive.  This has two consequences.  One is that appeals to functional equivalence between digital and pre-digital copyright may fall on stony ground when measured against the words of the legislation. 

The second consequence is growing hostility to copyright, as the full ramifications of its extended digital reach have become apparent.  Most recently the Hargreaves Review concluded that copyright has overreached to a degree that brings it into disrepute and threatens its legitimacy. 
Whatever the ultimate result of the Meltwater litigation, it serves as a valuable reminder of the long arm of digital copyright.

1 comment:

  1. Hi friends,

    The Internet has been hailed as the most revolutionary social development since the printing press. Copyright is now seen as a tool for copyright owners to use to extract all the potential commercial value from works of authorship, even if that means that uses that have long been deemed legal are now brought within the copyright owner's control. Thanks a lot...

    Adobe Digital Rights

    ReplyDelete