Do Indexing and hyperlinks infringe copyright?

The High Court of England and Wales has decided on an interesting test copyright case regarding linking and news aggregation by public relations firms. The case is that of Newspaper Licensing Agency Ltd v Meltwater Holding BV [2010] EWHC 3099 (Ch). The claimants in the case are the Newspaper Licensing Agency (NLA), an industry association for several newspapers in the UK, and several other individual newspapers. The defendants are Dutch PR firm Meltwater, and the Public Relations Consultants Association (PRCA), the industry body for PR consultants in the UK.

NLA has established several licensing schemes for news content developed by their members, this includes a new online content licence deployed in 2009 which covers media monitoring organisations and the users of those services. In other words, anyone distributing newspaper content online would have to obtain a licence from NLA. Meltwater offers an indexing news aggregating service called Meltwater News, it has robots that crawl and index news sites, providing their users with customised search functions that will produce results and then email them to the customers. Meltwater’s clients include PR firms operating under the PRCA, which apparently in some instances forward these emails to their clients. The claimants sued Meltwater and the PRCA for copyright infringement, alleging that they must receive payment for the aggregating function performed by Meltwater, but also by the use given to these emails by PRCA.

The legal questions for the court seemed deceivingly straightforward, but reading the ruling I get the strong impression that the judge in the case, Proudman J, completely misunderstood the technologies involved and therefore delivered a decision that has potential negative implications.

The first question is the clearest of the lot. Did Meltwater infringe copyright by indexing news websites? The question here is one that rests entirely on the actions performed by the web crawler. It is clear that website indexing is on the face of it, copyright infringement, as an entire copy of the work is made and stored in a server for future use. This is one of the most widespread functions online, all search engines rely on indexing in order to operate, and the Internet as we know it would not function without it. Search engines without indexing would be useless. For many years, it has been understood that such indexing falls under the definition of transient copy present in the European Copyright Directive (2001/29/EC). Art 5.1 of the  ECD reads:

“1. Temporary acts of reproduction referred to in Article 2, 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, shall be exempted from the reproduction right provided for in Article 2.”

So, does Meltwater’s indexing fall under this exception? I believe that it does, but only because to argue otherwise would render all other indexing illegal. The court was asked to consider this point, and argued:

” 109. Therefore the temporary copies exception is solely concerned with incidental and intermediate copying so that any copy which is ‘consumption of the work’, whether temporary or not, requires the permission of the copyright holder. 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.”

I have highlighted the section in bold, because here we have a diabolical sentence that has far-reaching implications. While Proudman J was trying to tackle only the exception as it referred to the copying of content from a website, she has failed completely to understand that her argument means that all Internet browsing is in fact infringing copyright unless it can be demonstrated that such browsing is lawful. I am guessing that she envisaged a situation where websites express upfront that browsing the site does not constitute copyright infringement through licensing. Rest assured dear readers, that this blog is released under a CC licence, so I will not be suing any of you for copyright infringement. Proudman J continues referring to the transient copy exception:

“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. Moreover, making the copy does have an independent economic significance as the copy is the very product for which the End Users are paying Meltwater.
110. The exception cannot have been intended to legitimise all copies made in the course of browsing or users would be permitted to watch pirated films and listen to pirated music. The kind of circumstance where the defence may be available is where the purpose of the copying is to enable efficient transmission in a network between third parties by an intermediary, typically an internet service provider.
111. The exception cannot be used to render lawful activities which would otherwise be unlawful.”

The problem we have here is that Proudman J, while trying to illustrate a narrow point, used very broad examples. She was not thinking about everyday Internet browsing, she was thinking about browsing for “pirated films and listen to pirated music”, and never really considered that the Internet relies as a whole on the temporary copy exception. We are doomed!

The second important question is whether the automated email sent by Meltwater News to its clients is infringing copyright. The email itself seems to contain only a link and a small excerpt of the news item. This is another area where the judge gets both the technology and the law  spectacularly wrong. In order for there to be infringement, a substantial part of the work must have been copied, and to my mind, article excerpts are not substantial enough to warrant copyright protection. Moreover, Produman J seems to rule that hyperlinks themselves are capable of infringing copyright. I can only reproduce what she wrote for you to assess whether I am correct in my analysis:

“101. When an End User receives an email containing Meltwater News, a copy is made on the End User’s computer and remains there until deleted. Further, when the End User views Meltwater News via Meltwater’s website on screen, a copy is made on that computer.
102. Therefore the End User makes copies of the headline and the text extract in those two situations and there is prima facie infringement.
103. When an End User clicks on a Link a copy of the article on the Publisher’s website which appears on the website accessible via that Link is made on the End User’s computer.”

I may be entirely wrong here, but it seems to me that the bolded text heavily implies that hyperlinks can constitute copyright infringement. If my reading is correct, this again has far-reaching implications for this seemingly innocuous decision. When I started reading the case, I honestly thought that people were exaggerating the reach of this case, but I am flabbergasted by its wrong-headedness.

There is one other tremendously important aspect of the ruling that has contractual and licensing implications which have not been picked-up by other commentators. For the first time in the UK we have a case that considers browse-wrap agreements, but fails to make a clear statement about their validity, and sort of ignores the point in the end. This is because the court was asked to consider that many websites have prohibitions against commercial indexing in their terms and conditions. Proudman J says:

“95. The terms and conditions of some of the Publishers’ websites stipulate that paid for media monitoring services and their customers require a licence to use the content. Further, and importantly, it is a term of all the websites that they cannot be used for commercial purposes without the relevant Publisher’s express consent.
96. I was taken in oral argument only to one set of terms and conditions, those of the Mail online, although all of the claimant Publishers’ terms and conditions were examined in Mr Howe’s closing written submissions. They are all accessed by a very small link at the bottom of the relevant newspaper’s home page. […]
100. I was taken to no authority as to the effect of incorporation of terms and conditions through small type, as to implied licences, as to what is commercial user for the purposes of the terms and conditions or as to how such factors impact on whether direct access to the Publishers’ websites creates infringing copies.”

There are some other interesting parts of the ruling which I will not deal with. For example, Proudman J considers whether indexing is protected by the sui generis database right, or whether news headlines are original literary works. She is asked to consider some headlines from the Daily Mail, and admits that some of them are indeed independent literary works. Having chuckled at some incredibly imaginative Daily Mail headlines in my time, I have to agree with the judge on this point.

ETA: Some reports out there seem to be misrepresenting the ruling. I should have added that I think this ruling is ripe for appeal. Similarly, it is important to point out that its reach is limited, I do not think that it will eliminate Google and Twitter tomorrow.

ETA 2: Jane Lambert has pointed out that the court did not actually decide on indexing, as the judge stayed the action against Meltwater, an important part of the ruling that I missed. I’d like to ensure Jane that I do know the difference between a Directive and the CDPA, because the blog’s readership is international, I prefer to cite international norms where possible, even if it is not strictly legally accurate. I maintain my assessment of the judge’s grasp of the technology, I do not have the benefit of knowing her personally, as Jane does, but it seems clear to me that at least when it came to her decision on browsing and linking, she is missing just how important these functions are for the everyday functioning of the Internet. Her paragraph about browsing lawfully is still one of the most misguided things I have ever read regarding the Internet, and even rereading the entire section does not make it better.

Jane has an excellent analysis of the case here, as does the always excellent Kim Weatherall, with an Australian slant.