changing rules of copyright on the web – the NLA case

I’ve been wondering about the broader copyright implications of a case that went through the England and Wales Court of Appeal earlier this year.  The case was brought by  the NLA (Newspaper Licensing Agency) against Meltwater, who run commercial media-alert services; for example telling  you or your company when and where you have been mentioned in the press.

While the case is specifically about a news service, it appears to have  broader implications for the web, not least because it makes new judgements on:

  • the use of titles/headlines — they are copyright in their own right
  • the use of short snippets (in this case no more than 256 characters) — they too potentially infringe copyright
  • whether a URL link is sufficient acknowledgement of copyright material for fair use – it isn’t!

These, particularly the last, seems to have implications for any form of publicly available lists, bookmarks, summaries, or even search results on the web.  While NLA specifically allow free services such as Google News and Google Alerts, it appears that this is ‘grace and favour’, not use by right.   I am reminded of the Shetland case1, which led to many organisations having paranoid policies regarding external linking (e.g. seeking explicit permission for every link!).

So, in the UK at least, web law copyright law changed significantly through precedent, and I didn’t even notice at the time!

In fact, the original case was heard more than a year ago November 2010 (full judgement) and then the appeal in July 2011 (full judgement), but is sufficiently important that the NLA are still headlining it on their home page (see below, and also their press releases (PDF) about the original judgement and appeal).  So effectively things changed at least at that point, although as this is a judgement about law, not new legislation, it presumably also acts retrospectively.  However, I only recently became aware of it after seeing a notice in The Times last week – I guess because it is time for annual licences to be renewed.

Newspaper Licensing Agency (home page) on 26th Dec 2011

The actual case was, in summary, as follows. Meltwater News produce commercial media monitoring services, that include the title, first few words, and a short snippet of  news items that satisfy some criteria, for example mentioning a company name or product.  NLA have a license agreement for such companies and for those using such services, but Meltwater claimed it did not need such a license and, even if it did, its clients certainly did not require any licence.  However, the original judgement and the appeal found pretty overwhelmingly in favour of NLA.

In fact, my gut feeling in this case was with the NLA.  Meltwater were making substantial money from a service that (a) depends on the presence of news services and (b) would, for equivalent print services, require some form of licence fee to be paid.  So while I actually feel the judgement is fair in the particular case, it makes decisions that seem worrying when looked at in terms of the web in general.

Summary of the judgement

The appeal supported the original judgement so summarising the main points from the latter (indented text quoting from the text of the judgement).

Headlines

The status of headlines (and I guess by extension book titles, etc.) in UK law are certainly materially changed by this ruling (para 70/71), from previous case law (Fairfax, Para. 62).

Para. 70. The evidence in the present case (incidentally much fuller than that before Bennett J in Fairfax -see her observations at [28]) is that headlines involve considerable skill in devising and they are specifically designed to entice by informing the reader of the content of the article in an entertaining manner.

Para. 71. In my opinion headlines are capable of being literary works, whether independently or as part of the articles to which they relate. Some of the headlines in the Daily Mail with which I have been provided are certainly independent literary works within the Infopaq test. However, I am unable to rule in the abstract, particularly as I do not know the precise process that went into creating any of them. I accept Mr Howe’s submission that it is not the completed work as published but the process of creation and the identification of the skill and labour that has gone into it which falls to be assessed.

Links and fair use

The ruling explicitly says that a link is not sufficient acknowledgement in terms of fair use:

Para. 146. I do not accept that argument either. The Link directs the End User to the original article. It is no better an acknowledgment than a citation of the title of a book coupled with an indication of where the book may be found, because unless the End User decides to go to the book, he will not be able to identify the author. This interpretation of identification of the author for the purposes of the definition of “sufficient acknowledgment” renders the requirement to identify the author virtually otiose.

Links as copies

Para 45 (not part of the judgement, but part of NLA’s case) says:

Para. 45. … By clicking on a Link to an article, the End User will make a copy of the article within the meaning of s. 17 and will be in possession of an infringing copy in the course of business within the meaning of s. 23.

The argument here is that the site has some terms and conditions that say it is not for ‘commercial user’.

As far as I can see the judge equivocates on this issue, but happily does not seem convinced:

Para 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. As I understand it, I am being asked to take a broad brush approach to the deployment of the websites by the Publishers and the use by End Users. There is undoubtedly however a tension between (i) complaining that Meltwater’s services result in a small click-through rate (ii) complaining that a direct click to the article skips the home page which contains the link to the terms and conditions and (iii) asserting that the End Users are commercial users who are not permitted to use the websites anyway.

Free use

Finally, the following extract suggests that NLA would not be seeking to enforce the full licence on certain free services:

Para. 20. The Publishers have arrangements or understandings with certain free media monitoring services such as Google News and Google Alerts whereby those services are currently licensed or otherwise permitted. It would apparently be open to the End Users to use such free services, or indeed a general search engine, instead of a paid media monitoring service without (currently at any rate) encountering opposition from the Publishers. That is so even though the End Users may be using such services for their own commercial purposes. The WEUL only applies to customers of a commercial media monitoring service.

Of course, the fact that they allow it without licence, suggests they feel the same copyright rules do apply, that is the search collation services are subject to copyright.  The judge does not make a big point of this piece of evidence in any way, which would suggest that these free services do not have a right to abstract and link.  However, the fact that Meltwater (the agency NA is acting against) is making substantial money was clearly noted by the judge, as was the fact that users could choose to use alternative services free.

Thinking about it

As noted my gut feeling is that fairness goes to the newspapers involved; news gathering and reportingis costly, and openly accessible online newspapers are of benefit to us all; so, if news providers are unable to make money, we all lose.

Indeed, years ago in dot.com days, at aQtive we were very careful that onCue, our intelligent internet sidebar, did not break the business models of the services we pointed to. While we effectively pre-filled forms and submitted them silently, we did not scrape results and present these directly, but instead sent the user to the web page that provided the information.  This was partly out a feeling that this was the right and fair thing to do, partly because if we treated others fairly they would be happy for us to provide this value-added service on top of what they provided, and partly because we relied on these third-party services for our business, so our commercial success relied on theirs.

This would all apply equally to the NLA v. Meltwater case.

However, like the Shetland case all those years ago, it is not the particular of the case that seems significant, but the wide ranging implications.  I, like so many others, frequently cite web materials in blog posts, web pages and resource lists by title alone with the words live and pointing to the source site.  According to this judgement the title is copyright, and even if my use of it is “fair use” (as it normally would be), the use of the live link is NOT sufficient acknowledgement.

Maybe, things are not quite so bad as they seem. In the NLA vs. Meltwater case, the NLA had a specific licence model and agreement.  The NLA were not seeking retrospective damages for copyright infringement before this was in place, merely requiring that Meltwater subscribe fully to the licence.  The issue was not that just that copyright had been infringed, but that it had been when there was a specific commercial option in place.  In UK copyright law, I believe, it is not sufficient to say copyright has been infringed, but also to show that the copyright owner has been materially disadvantaged by the infringement; so, the existence of the licence option was probably critical to the specific judgement.   However the general principles probably apply to any case where the owner could claim damage … and maybe claim so merely in order to seek an out-of-court settlement.

This case was resolved five months ago, and I’ve not heard of any rush of law firms creating vexatious copyright claims.  So maybe there will not be any long-lasting major repercussions from the case … or maybe the storm is still to come.

Certainly, the courts have become far more internet savvy since the 1990s, but judges can only deal with the laws they are give, and it is not at all clear that law-makers really understand the implications of their legislation on the smooth running of the web.

  1. This was the case in the late 1990s where the Shetland Times sued the Shetland News for including links to its articles.  Although the particular case involved material that appeared to be re-badged, the legal issues endangered the very act of linking at all. See NUJ Freelance “NUJ still supports Shetland News in internet case“, BBC “Shetland Internet squabble settled out of court“, The Lawyer “Shetland Internet copyright case is settled out of court“[back]

the problem with a gift – the Christmas we get we don’t deserve

Malaysia in early December was full of Christmas preparations. No nativity scenes as this is a Muslim country, but gingerbread houses, Santa Claus, and Christmas trees everywhere.  And always, in hotel lobbies, in restaurants, in shopping malls the sound of carols playing; not “Fairytale of New York” or “When a Child is Born“, but traditional carols like those that played when I was a child.

Back in the UK and Ireland, actually less decorations, and certainly none of the giant gingerbread houses (except in the German Market in Birmingham), but certainly, in hotels and shops, tinsel and Christmas trees, and piped carols and Christmas music.   This time a broader selection of music, including “Fairytale’ (which I love) and ELP’s “I believe in Father Christmas” (which is also glorious).

Maybe the words of the latter are a little too dark for Malaysian taste.  According to Wikipedia’s page on the song,  some think the lyrics are anti-Christian, but Greg Lake evidently said it was written as reaction to the commercialisation of Christmas.   Certainly the song captures some of the disillusionment of a world that has lost its certainties, yet wistfulness at what it has lost, and still feeling a sense of the hope that Christmas conjures even when the reasons for it have been long forgotten:

I wish you a hopeful Christmas
I wish you a brave new year
All anguish pain and sadness
Leave your heart and let your road be clear

On a recording of an interview with BBC Scotland on Lake’s own web site, he even says that he does believe in Father Christmas 🙂

However, as I heard it again and again on my travels, and especially as I sat musing in the Harbour Hotel in Galway, it was the last lines of the final verse that captured me:

They said there’ll be snow at Christmas
They said there’ll be peace on earth
Hallelujah, Noel, be it heaven or hell
The Christmas you get you deserve

When it was written not long after the napalm drenched years of the Vietnam war and today when radio-controlled drones and road-side bombs are never far from the news, the message of peace on earth can sound like a cruel joke.  Maybe the ravaged world at Christmas time is no more than we deserve.

Yet the strange and shocking message of the child in the stable is exactly the opposite, the Christmas we get is not what we deserve.  The Christmas story isn’t about God waiting until the Jewish nation were good enough, nor the Romans that occupied their land.  Like every baby born to every couple, it does not wait in the womb until we are good enough to beparents, God help us if it were so, the human race would have long perished!  The Christ child is not a reward for the deserving, but, to a broken world, a free gift for all.

I think this lavish free gift was particularly close to mind due to a talk I heard while in Malaysia.  The speaker was working with IT systems for disabled children, and started his talk referring to the Koran for motivation; he said how the Koran teaches that if you do good on earth you will receive a reward in heaven. For me coming from a Christian background, this message was both familiar and similar to teachings I’ve heard from childhood, and yet also in some ways precisely the opposite.  The two parts of the clause are the same, but the connective is different.  In Christian theology, it is not that there is a reward in heaven because we do good, but rather we are enjoined to do good because we already have a reward in heaven.  The full, unstinting, unreserved gift of God always comes first.

This said, my feeling is that things are not so different in the actual practice of life.  Certainly, Muslim friends I know are not counting up their good deeds in some celestial bank balance.  For Muslim, Christian and Atheist alike, those who give themselves to ‘charity’ (such a lovely world, sadly debased) find it becomes its own purpose.

But for Christians, it also seems hard to accept that the Christmas we get is not what we deserve.  There is something uncomfortable and difficult about that free gift.  It is like those spam emails that come offering free computers or free holidays, we feel there must be a catch, or maybe that we don’t want to be beholden to others.  We invent ways to invert the clauses, to try to earn things, to turn the gift into wages.  In traditional churches it is about rituals and observances, in reformed churches it tends to be about statements of belief and right doctrine.  Both are important, but so easily become ways of earning what has already been given, of distracting us from and detracting from the core message of Christmas, as told to the shepherds 2000 years ago: “good news of great joy that will be for all the people“.

A Gift.

ignorance or misinformation – the press and higher education

I guess I shouldn’t be surprised at poor reporting in the Mail, but it does feel slightly more serious than the other tabloids.  I should explain I have a copy of the Mail as it was the only UK paper when I got on the Malaysian Airlines plane in Kuala Lumpur on Tuesday evening, and it is the Monday copy as I assume it had flown out of the UK on the flight the day before!

Deepish inside, p22, the article was “UK students lose out in sciences” by Nick Mcdermott.  The article quotes a report by Civitas that shows that while the annual number of students in so called STEM (Science, Technology, Engineering and Maths) courses rose by around 6500 in the 10 years 1997-2007, in fact this is largely due to an increase of 12,308 in overseas students and a fall in UK students of nearly 6000.  Given an overall increase in student numbers of 600,000 in this period and employers “calling for more science graduates”, the STEM drop is particularly marked.

While the figures I assume are correct, the Mail article leaves the false impression that the overseas students are in some way taking places from the UK students, indeed the article’s title “UK students lose out” suggests precisely this.  I can’t work out if this is simply the writer’s ignorance of the UK higher education system, or deliberate misinformation — neither are good news for British journalism.

Of course, the truth is precisely the opposite.  Overseas students are not in competition with UK students for undergraduate places in STEM or other subjects, as the number of UK students is effectively controlled by a combination of Government quotas and falling student demand in STEM subjects.  The latter, a disinterest in the traditionally ‘hard’ subjects by University applicants, has led to the closure of several university science departments across the country.  Rather than competing with UK students, the presence of overseas students makes courses more likely to be viable and thus preserves the variety of education available for UK students.  Furthermore, the higher fees for overseas students compared with the combined student fees and government monies for UK students, means that, if anything, these overseas students subsidise their UK colleagues.

We should certainly be asking why it is that an increasing number of overseas students value the importance of a science/engineering training while their British counterparts eschew these areas.  However, the blame for the lack of UK engineering graduates does not lie with the overseas students, but closer to home.  Somehow in our school system and popular culture we have lost a sense of the value of a deep scientific education.  Until this changes and UK students begin to apply for these subjects, we cannot expect there to be more UK graduates.  In the mean time, we can only hope that there will be more overseas students coming to study in the UK and keep the scientific and engineering expertise of universities alive until our own country finally comes to its senses.