An obscure and technical piece of copyright law has been stretched out of recognition by the aspirations of entrepreneurs. What is the “temporary copying exception” to copyright and what was it really supposed to do?
I sometimes wonder whether the history we are taught would be recognised by the people who were actually there.
Recently, perhaps due to age or perhaps due to the pace of change, I have heard people talking authoritatively about things I personally was involved with, and getting it completely wrong.
One such thing is “temporary copies”. This is a concept which exists in copyright law making certain kinds of copying legal even when there is no explicit licence, which featured in the NLA’s web licensing case with Meltwater. The claim that the legal exception for temporary copies covers paid-for media monitoring was rejected by the courts – and some people are outraged. Browsing has been rendered illegal they say. The internet will break if the law stands.
Of course it’s fine to say that you think the law is wrong and should be changed – and equally fine for people like me to disagree. But to say that the law will destroy the internet is, aside from being self-evidently untrue, also a rather dishonest way of trying to post-rationalise poor business and legal judgements of the past.
The temptation of the entrepreneurs
The legal concept of temporary copies solves a lot of problems for entrepreneurs. Building a business involving copying other peoples work, but without the need to get permission from them, makes otherwise impossible businesses viable. If you can make your idea fit within the scope of “temporary copies” you have a business, if you can’t you don’t. Since some of the biggest businesses on the internet, such as Google, have been built on the idea of making copies without asking first, the prospect is tantalising and it’s easy to lull yourself into thinking you’re covered.
So it’s easy to see why the law on temporary copies has been subject to rather optimistic interpretation by those who need to stretch it to cover their business, and rather narrower interpretation by those who would rather avoid loopholes which reduce the control they have over their content. I come from the narrow interpretation side of that argument, and I actually had a small involvement in the process which led up to the law in question being enacted.
The rather less tantalising reality
But back to the law. What, according to it, are temporary copies?
Here’s what article 5.1 of the Copyright Directive (officially and pithily known as “Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society”) says:
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.
This is the clause whose drafting I got peripherally involved with, the little bit of history I glimpsed in the making. It is transposed, more or less word-for-word, into section 28A of the UK Copyright Designs and Patents Act.
I guess it’s easy to see how, by simply glancing at this wording, you could persuade yourself that your service – for example your media monitoring service – might fall within it.
It’s a little harder if you look at the wording carefully. Even if you can persuade yourself that “transient and incidental” applies to you, and that because your business depends on technology anything you do is automatically “an integral and essential part of a technological process” (and I would say neither applies to a business like media monitoring), it’s kind of tricky to get past the overarching stipulation that your activity has “no independent economic significance” when your whole business depends on it.
But what was the intention of the law?
Even if you do manage to convince yourself it’s all OK looking at the text, the Directive provides some explanations in the form of recitals which are designed to help interpretation.
Recital 33 says:
The exclusive right of reproduction should be subject to an exception to allow certain acts of temporary reproduction, which are transient or incidental reproductions, forming an integral and essential part of a technological process and carried out for the sole purpose of enabling either efficient transmission in a network between third parties by an intermediary, or a lawful use of a work or other subject-matter to be made. The acts of reproduction concerned should have no separate economic value on their own. To the extent that they meet these conditions, this exception should include acts which enable browsing as well as acts of caching to take place, including those which enable transmission systems to function efficiently, provided that the intermediary does not modify the information and does not interfere with the lawful use of technology, widely recognised and used by industry, to obtain data on the use of the information. A use should be considered lawful where it is authorised by the rightholder or not restricted by law.
This makes things a little trickier. It’s more explicit that the exception is designed to cover only very low-level technical things rather than whole business processes. It reminds us that anything with “separate economic value on [its] own” isn’t covered. It specifically states that acts which enable browsing ARE included, making any hyperbolic claims that this law outlaws browsing rather feeble. And it points out that if something isn’t authorised then it isn’t covered either, which makes it hard to depend on this law if you haven’t asked permission and harder still if you have actually been asked to stop.
If you (or your lawyers) thought hard about it, you would probably conclude that a court is the last place you want to have this argument. But it has been forced into court anyway, and it’s hard to see how they could have reached any different conclusions, given that courts decide cases based on what the law actually says rather than what people wish it would say.
How did it get written that way?
As it happens, this particular clause was subject to an incredibly long-winded and arduous process of negotiation, discussion and debate before it was finalised. One thing it is not is ill-considered. My small part was on the side of content owners; I worked for a newspaper company and participated in some meetings on behalf of them and a media industry trade group.
The heart of the issue as I remember it was a tension between ISPs (mostly at the time dial-up providers and the large telcos who provided the bandwidth and interconnections for them) and content owners.
Content owners were keen to maintain control over content and ensure that the law didn’t create loopholes for infringement to take place.
The telcos were worried that very often copies were made as an unavoidable part of the technical process of sending data around the internet – such as in routers, where technically data is copied, forwarded and then instantly deleted – should not be regarded by the law as infringing copies just because they weren’t specifically licenced.
Everyone was sympathetic to each others’ concerns, the question was how to get it worded in such a way that it didn’t create huge loopholes or unintended barriers. In other words, turning a clear understanding about the intention into workable language. Equally, using language which was too specific to the technical issues of the day would quickly make the wording obsolescent, along with the technology it referred to, so it had to try to find generic language which would still be relevant in the future.
The important thing to note is that this clause was intended to address a very small and narrow issue. This is reflected in the wording. Read it again, but now think about data packets passing through routers and switches, or caches being created by ISPs rather than media monitoring services being set up without the irritating need to ask permission to exploit peoples stuff.
It was a long time ago but I have some memories of some of the discussion of some of these phrases
“transient and incidental”. This was really about the copies made in routers. Technically speaking, data is copied, but only for as long as needed for the router to function. The copy is really an irrelevance, fleeting in duration and nobody ever sees it. It can also apply to cached copies which hang around a little longer but are not necessarily infringing (see below).
“an integral and essential part of a technological process”. There was a big discussion about caching here (among other things). At the time most internet access was dial-up and the biggest players provided services for free to users. To save money some of them operated large caches of popular content, serving their users directly from the cache rather than fetching the content from the original site’s servers. This caused some consternation, because it meant the owners of the sites never knew their content had been accessed, couldn’t charge for ads, sometimes old content was served instead of newer updates and so on. However, there is a technical way to control caching, using a setting in the (invisible) http headers which are served along with content. As long as ISPs respected these settings (which were integral to the technological process of serving web pages) then their caches were fine, as soon as they started ignoring them they weren’t. In other words the site owner should always have control.
“whose sole purpose is to enable a transmission in a network between third parties by an intermediary”. I email a file to you. The file goes from me to my ISP, my ISP to any number of routers operated by any number of third parties, then to your ISP and finally to you. Lots of copies are created, most of them in systems which have no direct relationship with either of us. These copies should not need their own licence so the law creates an exception for them.
“whose sole purposes is to enable a lawful use”. I look at a webpage. My computer creates a copy in memory and maybe on my hard disk. These copies are just allowing me to look at the webpage and so should not need their own separate licence (although I think it’s implied in any case). So the law created an exception for them.
“which have no independent economic significance”. This one seems to be one of the most wilfully misinterpreted. I have heard the argument made, with a straight face, that a company which keeps complete copies of entire websites in their servers in order to use them for their business is covered by this exception. The logic seems to be that although they keep copies of the entire content, and they depend on them to do business, they don’t make more than small snippets available to their users and so the copies in their servers have no economic significance. Since this is self-evidently asinine and self-justifying I don’t think it needs a lengthy deconstruction – it’s obviously absurd.
The legalities drag expensively on…
The NLA and Meltwater litigation rumbles pointlessly on, and so all this will be subject to even more scrutiny by the courts.
Fortunately for them, they have copious sources which can help them understand the process which led up to the wording. As well as the law in its final form, and the recitals explaining some of the intent,.the whole official and political process was documented as it went along. There are also plenty of people who participated who can help round out the picture if necessary. The courts won’t need to use the forensic skill of the ancient historian to determine what the law was intended to achieve – they can get the first-hand version. I find it hard to see how they could change the conclusion of the lower courts whose judgement, in my view, reflects the letter and intent of the law.
Meanwhile back in the real world, more sensible things are happening. Meltwater has agreed a licence with the NLA. They’re doing business, their clients are getting a service, so are the clients of their rivals who are on a level playing field. The internet is still there, it’s not broken. Browsing is still legal. A few angry businessmen, put out by the idea that someone else’s property isn’t available as a free resource for them, continue to scream and shout and look foolish.
Move along now, nothing to see. Time for a nice cup of tea.
DIsclosure: I am a former chairman of the NLA and still do occasional freelance work with them and their members