Through the Copyright Barricades in PRCA v NLA

August 21, 2013

I am part of the team that represents the NLA in this litigation.  The Supreme Court’s recent decision has been written about extensively. This article sets out some of my personal reflections on certain aspects of the litigation and the Supreme Court’s decision.     

Battle royal?

The litigation has been couched in rhetoric. I have read headlines that the decisions of the High Court and Court of Appeal would ‘break the Internet’ and spell the ‘end of browsing’.  There is, however, no such apocalypse on our Internet horizon.  The Internet is still working and you and I are still browsing it.  The truth is that this litigation was never really about Internet browsing even if, as it now appears, it has become its centrepiece. 

It started out when Meltwater challenged the reasonableness of the NLA’s licensing scheme in the Copyright Tribunal.  Although Meltwater refused to accept as a matter of law that it required a Web Database Licence (WDL) from the NLA to scrape (ie copy) NLA publisher web sites it decided that, given the relatively modest licence fee under the WDL (either £5,000 or £10,000 per annum), it was not worth putting into question before the Tribunal.  Conversely, Meltwater and the PRCA did put into question the legal basis of the Web End User Licence (WEUL) required by Meltwater’s customers. 

The licensing scheme (comprised of the WDL and WEUL) was introduced following a consultation with media monitoring organisations.  Meltwater did not participate in that consultation, despite several invitations by the NLA to do so, and therefore did not raise its concerns prior to the introduction of the licensing scheme.   

As a consequence of Meltwater and the PRCA’s challenge to the WEUL, the NLA sought and obtained a declaration from the High Court which was upheld by the Court of Appeal subject to a slight modification such that ‘most if not all members of the PRCA require a licence or consent from [the NLA or the publishers] in order lawfully to receive and/or use the “Meltwater News” service provided by [Meltwater]’.  Along the way, Meltwater and the PRCA threw in a litany of defences – including the temporary copy exception under Article 5(1) of the InfoSoc Directive – but none of them stuck.   

The appeal

The PRCA sought only to appeal the Court of Appeal’s finding in relation to the temporary copy exception.  Whilst their application for leave to appeal to the Supreme Court was pending, the landscape shifted somewhat when the Court of Justice handed down its – somewhat perplexing – decision on Article 5(1) in FAPL v QC Leisure.  Shortly after leave was granted, the Court of Justice then handed down its decision on Article 5(1) in Infopaq II (Infopaq I also considered Article 5(1)).  So by the time the Appeal was heard by the Supreme Court, the Court of Justice had considered Article 5(1) on three occasions.  It will now have a fourth bite of the Article 5(1) cherry following the Supreme Court’s reference in PRCA v NLA.

Article 5(1) reads as follows:

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.’

Sauce for the goose but not for the gander

The PRCA has accepted that its members will require a WEUL where their monitoring report is sent to them by e-mail.  That finding was not the subject of the appeal to the Supreme Court.  The appeal concerned whether a WEUL was required to access the very same monitoring report through a web browser.   The provisional view of the Supreme Court is that it was not required as the temporary copy exception in Article 5(1) applies. 

This means that if Meltwater sends you a monitoring report by e-mail you are required to have a WEUL.  However, if Meltwater instead sends you an e-mail informing you that your monitoring report is available to view on their web site you are not required to have a WEUL. You would view exactly the same content, for exactly the same duration and for exactly the same purpose but the copyright owner would not get paid.  At least commercially, that seems a little odd.

Short-term gain and long-term pain

This may seem like a pleasing consequence for media monitoring organisations – who would be able to configure their services to take advantage of the ruling – and their clients.  Looking further ahead, however, at least for the newspaper industry, as revenues from print editions continue to decline, the focus on monetising online content is likely to increase.  One rational response in these circumstances would be to deploy a paywall.  The question is, however, whether a paywall is the ‘silver bullet’ solution.

Clearly, simply looking at (‘viewing’) a copyright work is not an infringement of copyright.  I recently read Sheldon Kopp’s ‘If You Meet the Buddha on the Road, Kill Him!’.  Before I could ‘view’ the book, I had to obtain a copy of it and to obtain a copy of it I had to pay the purchase price of £7.99. So Sheldon Kopp’s estate or whoever else now owns the copyright (presumably) gets paid something.  Once I had received my copy of the book, I didn’t have to pay any more money simply to read it.   

In the online world, a paywall would require me to pay for a digital copy of the book (possibly at a lower price), just as I would pay for a physical copy.  There is a difference in that I would make the digital copy of the work myself, rather than paying for a physical copy made by someone else. 

In the absence of a paywall, however, where I make that digital copy in my browser cache without actually downloading a ‘permanent’ copy,  I could rely on Article 5(1).  Then I could say to the copyright owner ‘I am only doing what I am entitled to do by the law and therefore you cannot charge me for the privilege.’  In truth, the digital copies that I make in my browser cache and on my computer screen are direct substitutes for a physical copy of the book that happened to have been made by someone else.

So why not just deploy a paywall you may ask?  A paywall provides a one-size-fits-all approach.  No one can see the content behind the paywall without paying to do so.  The copyright owner is forced to provide access to all on the same terms; he is divested of the opportunity to choose which groups should or should not have to pay for a digital copy of his work.   In the case of newspaper web sites, this would mean that the majority of private non-commercial users would have to pay to view a copy of the work because the newspapers want to be able to charge the minority of commercial users.  

There are, of course, many reasons why a web site would choose to go behind a paywall. If ultimately confirmed, the Supreme Court’s provisional view will provide another.  In fact, it’s already happening.  And as more web sites go behind paywalls, no-one gets to access the content for free as they do now.      

The purpose of Article 5(1)

One of the difficult questions that the reference raises is where the lines of copyright control relating to the Internet should be drawn.  Debate on this topic tends to be polarised as favouring one set of interests to the detriment of another.       

Article 5(1) is an instrument of that control.  If it is defined restrictively, it favours right holders.  If it is defined as the Supreme Court suggests it should be, it does not.  This raises the vexed question about the purpose of Article 5(1) which is so crucial to understanding precisely what temporary copies it was intended to cover. 

If you scour through the travaux preparatoires (as I have done), you won’t find much about the reference to browsing, which seemed to find its way into Recital 33 to the InfoSoc Directive as something of an afterthought.  You will find much more about the temporary copies made by intermediaries in the course of Internet transmissions, but that is not in dispute here.  

When in FAPL v QC Leisure the Court of Justice considered Article 5(1) it concluded that its objective is to ‘ensure the development and operation of new technologies’. That may or may not have been one of its objectives but it is doubtful that it was the sole objective.  It seems, however, we are stuck with that conclusion, however apocryphal I might think it to be, and it is therefore unsurprising that the Supreme Court adopted it.

The Supreme Court was also adamant that Recital 33 makes it clear that the exception was intended to cover temporary copies made in the course of Internet browsing.  Recital 33 states towards the end:

…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.’

The recital refers to ‘acts which enable browsing’ rather than ‘acts of browsing’.  In contradistinction, it refers to ‘acts of caching’ rather than ‘acts which enable caching’.  Considered by itself, that may not seem a particularly compelling reason to infer that Article 5(1) was not intended to cover acts of browsing.  After all, caching, unlike browsing, is synonymous with copying (in other words, it is the caching itself which is the copying).  The same cannot be said of browsing; browsing is not copying and you need copies to enable browsing to take place.   

However, there is a second consideration which shines a slightly different light on this wording. Suppose that the parenthetic wording in Recital 33 (including those which enable transmission systems to function efficiently) is momentarily ignored:

‘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, . . . provided that the intermediary does not modify the information ….’

Nothing turns on the omission of the deleted words but it demonstrates how the sentence is constructed and it seems clear (at least to me!) from this sentence that the acts which enable browsing (as well as acts of caching) are supposed to be acts undertaken by the intermediary.  Thus we might conclude that this sentence is concerned solely with the first limb of the two sole purposes expressed in Article 5(1), namely Article 5(1)(a) dealing with intermediaries, with the final sentence (‘A use should be considered lawful…‘) dealing with the second limb in Article 5(1)(b). (Whilst this reasoning was put to the Supreme Court, it is not dealt with in the judgment.)

Beyond the stated purpose in FAPL v QC Leisure and the Supreme Court’s take on Recital 33, it is worth remembering that elsewhere in the InfoSoc Directive many other recitals make it clear that its purpose is to confer a high level of protection on right holders (see for example, Recitals 4, 9, 10, 11, 12, 15 and 22). 

From the Higgs boson to infinity and beyond: how temporary is temporary?

The Supreme Court suggests that the conditions of ‘temporary’ and ‘transient’ mean the same thing.  If that is correct, it perhaps begs the question why both conditions are included in the Article 5(1) exception.

The concept of ‘temporary’ is difficult to define.  Compared to an infinite amount of time, 10,000 years might seem ‘temporary’ and indeed, anything which is quantifiable is in one sense temporary.   I would venture to suggest that ‘transient’ brings to mind something of a shorter duration than something which is merely temporary, perhaps something more fleeting; anything from the Higgs boson (assuming it exists) to the blink of an eye or perhaps a little bit longer. 

The Supreme Court has conflated these two concepts. It has also made the  technological process (part of the third condition) the determining factor for what is temporary.  So even if I leave my computer screen active or in sleep mode for a few days so that I can repeatedly return to my digital copy of ‘If You Meet the Buddha on the Road, Kill Him!’ to read at my leisure, in the Supreme Court’s view this is tantamount to artificially extending the duration of the technological process when the key issue is whether a human intervenes to delete the cache and screen copies.  It would still qualify as a ‘temporary’ (ie transient) copy. 

So now we are arguably in a position where, provided that the copy is part of a technological process, – noting that the copy on the computer screen is now seemingly no longer the end which the technological process is intended to achieve but a part of the process – it is a temporary copy no matter how long that process takes.  If this sounds confusing, it is because it is.

Ever-decreasing circles and lawful use

Although the fourth condition concerning lawful use has not been referred to the Court of Justice, I think it merits a mention here.

Recital 33 of the InfoSoc Directive tells us that:

A use should be considered lawful where it is authorised by the rightholder or not restricted by law’

In this litigation, we were concerned only with whether or not the use was ‘restricted by law’.  As every overworked lawyer knows, there is a lot of ‘law’. 

In FAPL v QC Leisure the Court of Justice pared this down somewhat by referring to it as ‘the applicable legislation’ (thereby ruling out common law, for example).  It found that the use in that case was not restricted by ‘the applicable legislation’ but then rather confusingly went on to find that the same use nevertheless infringed the Article 3 communication to the public right in the InfoSoc Directive.

The Supreme Court quite understandably sought to rationalise this apparent inconsistency. It determined that Article 5(1) was concerned only with the ambit of the Article 2 right of reproduction in the InfoSoc Directive.  So we have shifted from ‘law’ to ‘the applicable legislation’ to the reproduction right only.  That seems to me to be a shift of galactic proportions.  The Supreme Court concluded that ‘The only requirement was therefore that the relevant use should be consistent with EU Legislation governing the reproduction right, including Article 5.1 itself.’  Thus in determining whether a use is lawful it is necessary to check whether it is consistent with Article 5(1) itself which, of course, requires you to determine whether the use is lawful and round in circles you go!   

We are unlikely to revisit this issue but, in my view, it desperately needs some further consideration and clarification.         

The other way?

Let’s imagine for a moment that Article 5(1) does not apply to all Internet browsing in the manner described by the Supreme Court, and at least not to the copies of copyright works that are made on a computer screen to be ‘consumed’ by an Internet browser.    Does that really make millions of Internet users liable for copyright infringement? 

I rather suspect it doesn’t because in most cases where a copyright work is included on a freely accessible web site with the copyright owner’s consent there is an understanding that it will be viewed by Internet users.  Thus in most cases the Internet user is likely to have at least an implied licence to make the copies required for the purpose of non-commercial browsing and quite possibly an express licence mandated by the web site terms of use.  Thus right holders would enjoy the high level of protection mandated for them by the InfoSoc Directive but they would also be able to exercise a more refined measure of control on how their content is used and whether certain groups of users should be required to pay for their use. 

Internet users would not become hostages to fortune any more than they already are – how many Internet users do you know who have been sued by right holders merely for browsing the Internet?  I doubt the vast majority of right holders would not grant an express licence or be taken to have granted an implied licence for the kind of browsing activities which now seem to have become the driving force behind this reference.   Right holders would remain free to charge for commercial consumption of the copyright works through a web browser and to pursue those who consume pirated works through a web browser (and provide a disincentive for them to do so).   

If the Supreme Court ultimately confirms its provisional view, it is the right holders themselves that will become a hostage to fortune. The consequence for Meltwater may be just the thin end of the wedge as technology evolves.  For end-users who use a web browser to view streamed content (including pirated content) or to access content which is stored in the cloud, the Internet will be a copyright-free zone.  Is that really what Article 5(1) was supposed to achieve? 

Toby Headdon is a Senior Associate at Berwin Leighton Paisner LLP

© Toby Headdon 2013