UK Supreme Court Says Unauthorized Browsing Of Copyright Material Online Is OK, But Asks European Court Of Justice Just In Case

from the are-we-there-yet? dept

Wed, Apr 17th 2013 1:59pm — Glyn Moody

The lawsuits brought against the media monitoring firm Meltwater in both the US and the UK have not turned out too well for the company so far. In the US, the district court handed down a summary judgment against Meltwater, while in the UK, two courts came to a particularly worrying conclusion: that simply viewing copyright material online without a license amounted to infringement.

Fortunately, this judgment was appealed to the UK Supreme Court, which has just published its ruling. The judges recognized that the central issue is whether the temporary copies held on a computer in its memory cache, which are necessary to view a document stored on the Web, are covered by a clause in UK and European law that exempts temporary copies from needing a license provided certain conditions are met. In the judges' view, copies held purely for browsing were indeed covered, provided they were not saved or printed out. Here's why that is crucial:

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, which would make infringers of many millions of ordinary users of the internet across the EU who use browsers and search engines for private as well as commercial purposes.

That's obviously just common sense -- sadly, a rare commodity when it comes to copyright in the online world. However, the UK Supreme Court has asked the European Court of Justice to offer its own, definitive, ruling so as to settle the law for the whole of Europe. As the judge writing the verdict noted: I recognise the issue has a transnational dimension and that the application of copyright law to internet use has important implications for many millions of people across the EU making use of what has become a basic technical facility. These considerations make it desirable that any decision on the point should be referred to the Court of Justice for a preliminary ruling, so that the critical point may be resolved in a manner which will apply uniformly across the European Union.
Of course, the legal status of temporary copies is a crucial question elsewhere, too. For example, in her speech at Columbia University back in March, Copyright Register Maria Pallante spoke of "the confusion over incidental copies", which needed sorting out. More worryingly, one relatively recent leak of the TPP draft seemed to indicate that it would require all temporary copies to be regulated. The fact that we are still having this discussion about a technological necessity some twenty years after the Web was invented, shows just how out of touch with modern reality copyright law remains.

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Filed Under: browsing, copyright infringement, eucj, incidental copies, temporary copies, uk
Companies: ap, meltwater

27 Comments

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Ninja (profile), 17 Apr 2013 @ 12:34pm

I keep imagining when they finally get over to legislating stuff like the decentralized nature of bittorrent... Mind boggling eh? I think they'll catch up around 2030.
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Anonymous Coward, 17 Apr 2013 @ 2:09pm

Wouldn't the fact that the "discussion(s)" are happening and will continue to evolve suggest the opposite to your final statement Glyn?
"The fact that we are still having this discussion about a technological necessity some twenty years after the Web was invented, shows just how out of touch with modern reality copyright law remains."

Rome wasn't built in a day
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jackn, 17 Apr 2013 @ 2:23pm

I say Unauthorized Browsing can't happen.

If you can find it, you can see it. no authorization needed.
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Anonymous Coward, 17 Apr 2013 @ 2:24pm

incur civil liability, at least in principle, by merely coming upon a web-page containing copyright material in the course of browsing

Given that arrangements of public domain works are subject to copyright, every page on the web is covered by copyright. Presumably the quote should refer to material published on the Internet without permission.
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Anonymous Coward, 17 Apr 2013 @ 2:27pm

as a downloader, not uploader, how effective would the excuse "I believed he was a licensed distributor, otherwise why would it be available through them?" be?
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Atkray (profile), 17 Apr 2013 @ 2:28pm

Re:
You been to a construction site lately?

48 Hrs to build a hotel

Times change.
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Chris Brand, 17 Apr 2013 @ 2:30pm

Re:
I'd say that you're right, but for the wrong reasons.

If you can find it, it's because the person who put it there made it available to you, and hence gave their implicit permission for you to browse (i.e. download) it. Of course it's always possible that that permission wasn't theirs to give, but there doesn't seem to be any realistic way for you to determine that.
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Anonymous Coward, 17 Apr 2013 @ 2:42pm

so when dishing out harsher prison sentences to someone than they actually deserve, simply because the judge thinks the defendant 'is arrogant', is perfectly ok, but needs to get clarification from a 'higher court' that looking at something is ok? what the hell is wrong with these people?
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out_of_the_blue, 17 Apr 2013 @ 2:45pm

"media monitoring"? What the hell euphemism is that?
It's even more misleading than Mike's "online press clipping/news aggregator service". -- Actually, Meltwater is a skimmer and a grifter: produces nothing, just takes value from others.

Anyhoo, this part is stupid: "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" -- No, somehow that's been flipped from the web-site operator being held responsible for what's on the site to those merely browsing, perhaps re-directed by one of the many private DNS boxes. If were actually any common sense applied, we wouldn't be seeing this raised.
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Anonymous Coward, 17 Apr 2013 @ 2:52pm

if the temporary caching of info means a person is committing infringement, then either every single internet user in the world is guilty or no one is able to browse the 'net. i fail to see how it is possible to look at anything on the 'net without there being temporary files saved on a computer. i am sure it would please the entertainment industries no end if the 'net became unusable for this or any other reason. let's face it, the industries refuse to adapt to modern society, it's needs and it's uses so is doing it's best to eliminate the best distribution medium known to man as the only alternative because it cant control it. which ever way it goes, it's nothing other than pure selfishness!
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Anonymous Coward, 17 Apr 2013 @ 3:01pm

Licensing of ephemeral copies
Requiring licenses for ephemeral copies of copyrighted works would allow publishers of electronic works (such as CDs, DVDs, Blu-Rays, music and movie downloads, ebooks, etc.) to attach license agreements to all of their works. If this goes through, you can say goodbye to the first sale doctrine when it comes to electronic works.
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Anonymous Coward, 17 Apr 2013 @ 3:02pm

Re: Re:
very well said. It is perfectly in line with my thoughts on the issue.
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Duke (profile), 17 Apr 2013 @ 4:13pm

Re:
as a downloader, not uploader, how effective would the excuse "I believed he was a licensed distributor, otherwise why would it be available through them?" be?
In UK law, it isn't at all effective, as there is no defence to copyright infringement for belief (genuine or even reasonable) belief in having a licence. You can still be sued. I think the appropriate remedy would be to try to recover any damages/costs from whoever supposedly licensed it to you.
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Duke (profile), 17 Apr 2013 @ 4:15pm

Re:
The difference is that the "arrogant" thing is English law thing (and may be overturned by the English court of appeal anyway), whereas this case turns on a point of EU law. As such, the authority for ruling on it is the CJEU. In fact, if there is an unclear point of EU law in a ruling, the highest appeal court *has* to refer it to them. Although the CJEU only answers the questions referred to it, rather than making a ruling on the underlying case.
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Duke (profile), 17 Apr 2013 @ 4:20pm

Re:
if the temporary caching of info means a person is committing infringement, then either every single internet user in the world is guilty or no one is able to browse the 'net.
Yes, which is why the original rulings were considered to be insane by many (including myself - with all due respect to the judges involved). There was some discussion of their being an "implied licence" to copy introduced by uploading stuff, but it wasn't relevant on the facts, so wasn't looked in to.

And it was the collecting society for UK newspapers behind this (the kind of people who want Google to pay them for indexing their websites etc.).
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Anonymous Coward, 17 Apr 2013 @ 5:53pm

Re: "media monitoring"? What the hell euphemism is that?
How is "news aggregator" misleading? The only way I can see that being the case is if you're using your own private definition and you personally expected something different.

It's amazing how often you buy into the claims and beliefs from corperation heads while claiming to be anti big business
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Anonymous Coward, 17 Apr 2013 @ 6:47pm

Re:
Rome wasn't built in a day

Yeah, but folks like Glyn and Mike find it completely unacceptable that their personal "final solution" is not immediately adopted by everyone. They could never admit that it's an evolutionary thing that doesn't move as fast as electrons.
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AC Unknown, 17 Apr 2013 @ 8:29pm

Re: Re:
You know what? Just go away. Your ad homs are annoying to everyone except you and your lackeys.
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cpt kangarooski, 17 Apr 2013 @ 10:07pm

Re:
Given that arrangements of public domain works are subject to copyright

Only creative arrangements, which are actually fairly rare if they're meant to be useful in some way, rather than merely arbitrary. Creatively selecting works is a lot easier than creatively arranging them.
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RyanNerd (profile), 18 Apr 2013 @ 5:14am

Did you read this?
I am in the UK right now. I have copyrighted this comment. You have read it. You owe me money. Send immediately in Euros.
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Anonymous Coward, 18 Apr 2013 @ 5:55am

Re: Did you read this?
Why would someone in the UK be asking for Euros when they use the Pound.
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Duke (profile), 18 Apr 2013 @ 6:37am

Re: Did you read this?
You don't "copyright" something; copyright is automatic - you own the copyright in it. As for your suggestion that money is owed;

(a) by posting the comment, you gave an implied, worldwide, royalty-free licence to anyone to copy it for their own personal use, connected with browsing this site (possibly a broad one, that would have to be argued before a court);

(b) additionally or alternatively, viewing the comment is not an infringement in the copyright as it falls within the exceptions of fair dealing for criticism and review, and/or private study;

(c) additionally or alternatively, the comment lacks sufficient originality to be protected as a literary work, and thus is not covered by copyright,

(d) finally, even if a claim for copyright infringement were to be successful, any damages awarded (based either on a "reasonable royalty rate" or "actual loss suffered") would be negligible, and below the de minimis threshold.

So there...

[Also, please be aware that dishonestly making a false representation ("you owe me money") intending to make a profit by it (or cause a loss) is a criminal offence in England, Wales and Northern Ireland, under s2 Fraud Act 2006.]
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Mason Wheeler, 18 Apr 2013 @ 11:32am

Re: Re:
48 hours to erect the frame of a hotel from prefabricated components that took a lot longer than 48 hours to produce.

And even after the frame was erected, they still didn't have the exterior or the interior put together.

Not quite the same as "build a hotel in 48 hours." Still pretty impressive, though.
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TaCktiX, 18 Apr 2013 @ 2:07pm

Re: Licensing of ephemeral copies
As if it weren't already gone short of deliberately violating the anti-circumvention clause of the DMCA?
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Anonymous Coward, 18 Apr 2013 @ 6:05pm

Re: Re:
interesting. Anyone know about US law?
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Sheogorath (profile), 25 Apr 2013 @ 6:44pm

Wasn't this covered in 2003?
However, the UK Supreme Court has asked the European Court of Justice to offer its own, definitive, ruling so as to settle the law for the whole of Europe.
Oh, geez. Even I can comprehend the InfoSoc Directive better than that, and I'm (technically) retarded!
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Anonymous Coward, 29 Apr 2013 @ 8:12am

not illegal, provided the copies are transitory. ( basically, if the copy is the equivalent of the music going from a CD to the earphones, you're OK, if it makes a permanent copy...)
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