Viewing on screen is not copying - certainly
CONFUSION reigns, even or even especially in some legal circles, over a judgement issued in the UK's Supreme Court on 17 April. It's moderately simple: the Court suggests it's probably not a breach of copyright to look at a web page that contains a copyright infringment. If you save or print it, you have made a copy, and if the owner finds you they can sue (but not for very much).
Probably, because the Supreme Court referred the question to the European Court of Justice (ECJ), which has the last say on the implementation of the relevant EU law.
The case was an appeal by the Public Relations Consultants Association Limited against a ruling in a lower court, and the Court of Appeal, in favour of the Newspaper Licensing Agency against Meltwater. The latter is a Dutch-based group which runs services to alert PR companies when their clients are mentioned in the media.
It is accepted by both sides in the case that Meltwater needs a licence from the NLA to make digital copies of newspapers to provide its service. The terms of this licence have been settled by the Copyright Tribunal.
It is accepted that customers of the present Meltwater service need a licence from the NLA, because that service sends them emails which include digital copies of (parts of) newspaper articles, and are saved on their computers.
The question before the Supreme Court was: would customers of a future Meltwater service, which allowed them to log in to a website and see copies of newspaper articles there, need a licence?
As the unanimous judgement, written by Lord Sumption, notes:
it has never been an infringement, in either English or EU law, for a person merely to view or read an infringing article in physical form.
...if it is an infringement merely to view copyright material, without downloading or printing out, then those who browse the internet are likely unintentionally to incur civil liability, at least in principle, by merely coming upon a web-page containing copyright material in the course of browsing. This seems an unacceptable result...
Even if Meltwater's customers don't need a licence, the NLA is presumably free to go back to the Copyright Tribunal to ask for a higher licence fee from Meltwater, to take account of the number of subscribers, or indeed of the number of articles they view. The judgement notes:
It seems very likely (although I am not deciding the point) that the licence fee chargeable to Meltwater will be substantially higher if end-users do not need a licence because on that footing the value of the rights for which Meltwater is licensed will be significantly higher.
From the point of view of journalism, then, the judgement will change little - if, that is, the ECJ agrees. The result would be that the NLA was prevented from pursuing Meltwater's UK clients in the UK courts.
The NUJ continues to investigate what happens to the money that the NLA collects from this and other licences in respect of works in which journalists retain copyright.
The judgement of the lower court that headlines can in these circumstances attract copyright protection does not appear to have been challenged. Previously, many thought that headlines were too short to count as "works".