Disruptors disrupted: NLA victory brings common sense back to copyright

The NLA won its appeal today. (Disclosure: I was on the board of the NLA when this action began and I am a previous chairman).

To judge from some of the coverage you would think this is the end of the web as we know it. There is an attempt to portray the ruling as a criminalisation of web browsing and somehow a perverse outcome which sets the internet back.

I would encourage anyone interested to look a little deeper than those rather dramatic assertions. “End of the world as we know it” always makes a good headline but in this case it’s wildly disingenuous.

This is an important ruling but actually not particularly controversial. What it says, in effect, is that you can’t copy stuff without permission. In other words it says exactly what copyright law says. The controversy, such as it is, centres around the fact that the company on the other side of the case depends on a different interpretation of copyright law – specifically that its particular use of content doesn’t require permission.

This may be a common assertion among internet businesses and many others have thrived on the assumption that other people’s content is a free resource available for exploitation. The justification is usually, at its heart, a post-rationalisation. Essentially their argument is that their use of content has to be legal because if it wasn’t they wouldn’t be able to be in business. Which would be terrible because they have a good business and their users like them.

In this particular case the company in question, Meltwater, decided to take a legally aggressive route when confronted with the NLA’s request that they take a licence. They referred the NLA to the UK’s Copyright Tribunal which in turn caused the NLA to go to the high court for a ruling which was today confirmed on appeal.

Meltwater may well be rueing the day they decided to do this, because the consequence of their action is that any possible ambiguity about interpretation of the law has been removed. This doesn’t just affect them, it affects anyone else whose web business is founded on a generous interpretation of the law.

With considerable chutzpah, Meltwater’s CEO has responded to the ruling today by saying “The big takeaway from this ruling is that our position has been made stronger for the upcoming Copyright Tribunal”. He doesn’t say how,  which is perhaps unsurprising since it would appear that their starting position (which can be summarised as “we don’t need a licence, but even if we do our clients don’t”) has not just been completely and wholly undermined but some other issues. such as the copyrightability of headlines, have also been clarified in favour of content owners.

Meanwhile the PRCA, Meltwater’s partners in this case (and for legal reasons the lead appellant), seem to be trying to say the ruling makes web browsing illegal or generally criminalises web users. “Millions of professionals will unwittingly infringe copyright legislation on a daily basis by simply browsing the web”, according to a scary statement on Paid Content.

This is, to my mind, clearly nonsensical. Most websites come with explicit or implied permission for people to browse them. What they don’t do is come with any kind of permission to set up a business which relies on copying all the content and selling services based on it to commercial users, nor to ignore requests to stop doing so. Meltwater tried pretty hard to make that case but the original judge and the appeal court both said no.

Which, in my view, is common sense.

I was looking at the Meltwater website just now and was struck by how it had changed since i last looked. Last time a phrase stuck in my mind which I couldn’t find anymore. They used to describe themselves thus: “Meltwater Group is a privately held Norwegian company committed to disrupting the status quo through novel technologies…”. It was the commitment to disruption which had stuck in my mind.

They now take a slightly different tack: “Meltwater is a global Software as a Service (SaaS) company developing disruptive, no-nonsense software…”. Not quite the same emphasis. Perhaps it turns out that disruption cuts both ways.

 

UPDATE: after posting this I was reading the Meltwater press release about the case again and found one thing a bit confusing having just read the actual judgement.

The press release says

“…The Court of Appeal  ruled that it will be very rare that headlines are copyrightable, which is something we’ve been saying from the start,” said Francis Ingham, Chief Executive of the PRCA. “Going back hundreds of years, no court has ever found a title worthy of copyright protection.”

I didn’t remember seeing this in the judgement, so I thought I could helpfully post the relevant paragraph so you can decide for yourself (emphasis added by me):

22.In these circumstances, the conclusion of Proudman J in paragraph 71 of her judgment that newspaper headlines are capable of being original literary works is plainly correct; indeed at one stage in his argument counsel for PRCA conceded as much. It was not suggested that she was not entitled to accept the evidence of Mr Bromley as indicated in paragraph 70 of her judgment. In those circumstances the conclusion in the last sentence of paragraph 72 that “some of the headlines are independent literary works..” is, in my view, unassailable. I would reject the submissions of counsel for PRCA on this part of the case.

Later on, in the conclusion, it says:

48 …There may be some cases in which neither the headline nor the ‘scrapings’ constitute a copyright work or a substantial part of a copyright work. A licence would not be required in such a case but there cannot be many of them.

You should read the whole judgement of course. But hard to see how the PRCA’s conclusion that it is “very rare” that headlines are copyrightable can be drawn from the judgement. Or am I missing something?

Comments

9 Comments so far. Leave a comment below.
  1. Hi, something that I’ve been trying to find out since reading about this judgment is how curated content and curation apps may be affected.

    For example, I use ScoopIt curation app to follow a topic and its bookmarklet picks up headline/intro content from various sources (all linked to and attributed).

    I take care to remove photos where I’m unsure of their © permissions. But I’ve always counted the headline and short clip as ‘fair use’. It provides traffic and Google juice back to the original site. I could rewrite each headline but that would be ridiculous.

    The twist here is that I curate this topic in part to be useful on this niche subject but also because I blog for a company on this subject. Does this then add a commercial element?

    If you could provide some clarity on this, that would be very useful.

    • Fiona

      I’m not a lawyer so this is just my view. But I suppose there are two factors to consider here – on the one hand is it legal and on the other hand does anyone mind?

      On the legal question, the fact that so many people so this sort of small scale copying, and so many people have set up business to facilitate it, doesn’t necessarily make it legal. “Fair Use” (which is a concept in US law and mainly defined by case law over the years) often seems to be interpreted according to what the user thinks seems fair – which normally includes whatever it is they want to do with the content in question. In other words, Fair Use is interpreted broadly by the user and narrowly by the aggrieved content owner and keeps lawyers and academics busy arguing over what it means.

      In the UK (where I am – not sure where you are) the law on this is quite different and there are certain prescribed exceptions to copyright. The closest equivalent concept is “Fair Dealing” which is much more defined and limited in scope (interestingly the major point in the Meltwater case wasn’t Fair Dealing but another legal exception which exempts temporary copies of content made when browsing on the internet, in routers at an ISP for example, from being infringing… Meltwater claimed this covers their activities and the court said it did not).

      On the question of whether anyone cares, you can form your own view. But it’s true to say that many content owners want traffic and so sites which help drive it are welcomed by them. So to the extent that the use of their content might be infringing they don’t mind so they don’t do anything about it. Personally I find the argument about traffic and “Google juice” pretty lame. It might be true that they get those things, and it might be true that some sites value them highly. But the idea that because someone thinks they’re offering a reasonable trade for use of someone else’s content they should too is, to me, absurd. It’s like operating a supermarket with an honesty box instead of a till. The content owner might have different views about what their content is worth and how they value traffic and “juice” and so it’s only polite (as well as a legal requirement) to ask them in advance whether or not they are happy with the exchange.

      In truth legal action is hardly ever worth the bother and the only reason the Meltwater case happened is because they decided they wanted to take a stand on a point of law they thought went in their favour. Most infringements are ignored either because the owner doesn’t mind (i.e. if someone had asked they would have said yes), they don’t know about it or action isn’t worth the huge unrecoverable cost in time and money.

      So: my view is that you need permission to use content unless you’re very confident it falls within an exception like fair dealing or fair use. But that raises some obvious practical questions, like how can you actually get permission. In the same way as it’s hard for content owners to find and do something about all the infringing copies of their content online, it’s hard for people like you to seek, maybe pay for and receive permission to use all the stuff you want to. There isn’t really any alternative to just doing it, hoping for the best and responding quickly in the unlikely event that you get any complaints.

      This isn’t a question of law, it’s a question of functionality. One attempt to put machine-readable permissions in place, ACAP (http://www.the-acap.org/ which I was involved in creating), has not yet been widely adopted because the search engines declined to implement it. Other initiatives in this area are under way, the idea being that it ought to be easy to find out about what rights may or may not be available before republishing a piece of content.

      That functionality is absolutely needed to bring some kind of rational order to the chaos online and it will stimulate all sorts of sensible business models which will provide real benefit to content owners unlike most business models at the moment. Part of the reason for the wrong-headed state of things at the moment is that the law in both the USA and Europe give legal protection to services which facilitate aggregation but not their users. So while you may be doing something infringing, the service you use to put your package together, probably isn’t (until they’re put on notice by the content owner). For this reason many profitable services have sprung up which actually facilitate infringing behaviour but because the liability is with the users (whose identity can almost never be discovered and who aren’t worth suing anyway) they do very nicely and the users feel very relaxed because it feels so legitimate.

      That particular aspect of the law is, in my view, an ass and until it changes we’re going to be face the prospect of professional creators being largely unable to make a profit online even though others whose business depends on their content can.

      • Thanks for your lengthy reply.

        As a journalist who’s worked as a sub-editor writing headlines and clipping stories from other newspapers (attributing the source), I can’t see how doing the same thing for curation apps is any different – but this ruling may make it so?

        I work as a blogger for clients so I need to make sure I am treading the legal line – but it is very hard to keep on top of what these rulings mean and the wider impact they may have after it drips down from large media rulings.

        Unfortunately, the ‘don’t mind’ argument can be dangerous. You are right that many small fish are too small to fry. But there are copyright troll companies springing up who target copyright infringements by smaller, normal users, and sue them – it being a numbers game of thousands of small payments adding up to a good business.

        So, I’m still at a loss – can I use ScoopIt, Storify, Tumblr, Posterous to bookmark or curate content in the same way that Google publishes head/intro listings (and creates copies by caching)?

        FWIW, I do think that traffic and linking has value – advertising is based on visitor numbers to a site; presence high up on Google for a topic can make or break a business.

        But that’s not the issue. It’s how to get clarity to avoid potential legal issues.

      • Well… I guess there we have the grey area. Limited quoting is often fair dealing (for “reporting current events” or “criticism and review” when done by journos, on the whole), or too small to be an infringement. But also, in journalism, nobodies interests would be particularly served by constantly suing and counter-suing. One editorial lawyer I know used to school journalists in understanding the difference between what he called petty theft and grand larceny. And you can’t copyright the facts of a story, just your words, so stories are constantly re-told and summarised without infringing any rights. But your point actually highlights the truth of how things work in real life which is that copyright issues are rarely settled legally, and usually there is a symbiosis at work. When that doesn’t happen – when one person does all the taking but doesn’t give anything back and does it on a massive scale – it can get sticky and lawyerey.

        I have to say I don’t think this ruling changes very much, other than sweeping away some of the comfortable but incorrect assumptions about what is OK and what isn’t. One significant part is the issue of headlines, which the ruling says are capable of being literary works in their own right and therefore copyrightable. So they can’t be used willy-nilly without a licence. Other than that I think it just confirms what was always true.

        You’re right that the “don’t mind” approach has risks. If you want to avoid all risks then don’t use other peoples content without asking them. But if you’re trying to work out the scope of the risk then the chances of getting sued are pretty minimal. To quote some statistics I just made up, I reckon 99.9% of all copyright infringements on the internet go completely unacted on, and 99.9% of the ones which do attract some action are resolved by simply removing the content in question. The chances of ending up in court are vanishingly small and since the actual damage caused by the sort of use you’re talking about is tiny (each individual instance is almost inconsequential, it’s the volume of them which causes the problem) the disproportionate costs makes it unattractive all round. So unless you’re doing something on an industrial scale you’re unlikely to get a massive lawsuit or in fact any lawsuit at all. If you’re really unlucky you’ll be asked to remove some content.

        On the specific question of what’s legal, ask a lawyer. My view is that a lot of stuff online is not strictly legal, but also not really actionable. Clearly using headlines and small snippets is very common. I hope the law will get clearer on this and the ISP exemptions are crazy and need to be substantially revised. But I think the question for you is not what’s legal (much of it is still in a grey area) but what risks are you running. If you don’t want to run any risks, don’t use anyone else’s stuff.

        On linking and traffic, by the way, for many big sites more traffic is completely worthless in financial terms. They have far more traffic than they can sell for decent prices to advertisers and virtually nobody beyond the big aggregators/search engines and (for newspapers) the Drudge Report, provide more than a tiny amount of it. Unless you’re providing a hundred thousand clicks you’re probably not generating more than about a tenner in ad revenue, more likely zero. Having big traffic does make people feel good though. It’s not the same for every site, obviously, and some will value traffic highly especially if they are selling something or have a very niche offering with high ad rates and sold-out inventory. But assuming that because you consider you’re giving someone something valuable they should agree with you is, well, wrong.

      • Thanks. I wish I had a lawyer on staff. ;)

        Re: “when one person does all the taking but doesn’t give anything back and does it on a massive scale – it can get sticky and lawyerey”

        That is exactly what happened to me when Trinity Mirror made a deal with a digital ‘encyclopedia’ firm (owned by Walmart) to re-use all their content but charge for people to read it. I held the copyright but was never asked to waive it. By the time I found this out, a class action had taken place in the US and I was too late to join it. Those who did, got around $25 per article. And so, of course, UK large media continue to infringe their own writer’s copyrighted work – and that US company continue to sell articles that aren’t legally theirs – because it’s cheaper for them to do that and pay court compensation.

        So I’m screwed with full length features I write being stolen and re-sold. I’m also screwed by republishing head/intros, even though I’m attributing correctly and doing exactly what journalists do in their daily work.

        OK, rant over.

        Thanks for your comments.

      • Ha ha you’re just tempting me now. I used to sit at the other side of THAT argument from you (not at TM though). I would make the point that Trinity Mirror probably paid you in the first place when you did the work, so while you may think they shouldn’t have done what they did they’re not comparable to sites which exploit huge quantities of stuff without ever paying anyone anything at all. To reflect your own comment back at you, if you think they were infringing your copyright by re-using something they paid for in the first place you’re being a bit hypocritical if you’re helping yourself to other people’s stuff without even telling them, far less paying them, and saying that they ought to be happy with the traffic you’re giving them as a proxy for actual money or permission.

        Truth is that if TM had had to pay you and everyone else it probably wouldn’t have been worth doing the deal so you wouldn’t have got anything either way – and I doubt the deal made much impact on their profit margin (and whether or not their use was infringing in the first place would depend on individual circumstances – I have no idea whether you’re right or wrong to state that they were infringing anything). By the way if you’re talking about the Tasini case (but if you are I don’t know what the Walmart connection is), I think I’m right in saying that nobody has actually been paid anything yet, other than lawyers. Might be wrong but that case a classic example of how the law is of little practical use in these circumstances.

        Anyway, perhaps what you’re doing now is fair dealing, hard to say without seeing it (and even then…).

        Beyond that I am in danger of taking the bait which will lead to a huge new discussion!

      • Ditto. Trying not to take the bait but I have to defend myself here:

        1. Trinity Mirror paid me for First British Rights only. All features were then re-sold via Highbeam – it may be the same case as the payout looks similar. (Walmart is from memory so may be wrong – this was around 2002.)

        2. Not sure how hypocritical I am. TRM/Highbeam republished the entire article without permission and earned money from my work. I am curating a topic (as would Google search) that only shows head/intro, plus gives attribution and link, and is non-commercial information gathering. The other difference is I will stop aggregating newspaper content if I’m infringing their copyright; they won’t.

        Here’s the ScoopIt: http://www.scoop.it/t/female-fds

        Be genuinely interested to see if you think this is fair dealing?

  2. PS. Regardless of traffic issues, linking back to the original is an attribution to the source. It is online etiquette, though not legally required I suppose. Again, just trying to do the right thing.

  3. It’s a good debate and more than happy to have it but perhaps offline?

    On attribution you have to attribute if you want to try to claim you’re fair dealing.

    It’s hard to know what the right thing is right now. One thing is true though: earning a living as a professional content creator is getting harder and harder while consumption is going up and up and people who contribute nothing at all are getting very rich by exploiting other peoples content. That doesn’t add up and has to change. In general if you create something popular you should benefit and that is often not the case right now.

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