EU Court Of Justice: Just Viewing Stuff Online Isn't Infringing On Copyright

from the about-time dept

It's kind of ridiculous that it's taken this long, but the EU Court of Justice has now made it clear that viewing stuff that is legally on the internet is not copyright infringement. We had written about this case a few months back, as an offshoot of the various cases against clipping service/aggregator Meltwater. This specific dispute involves the Newspaper Licensing Agency's (NLA) continuing argument with the Public Relations Consultants Association (PRCA), and NLA's absolutely insane assertion that on-screen and cached copies of articles online was copyright infringement unless there was a license. As we noted last year, the UK Supreme Court agreed that this was nutty, but asked the EU Court of Justice to weigh in to be sure.

And, thankfully, on this one the EUCJ got it right, saying that on-screen and cached copies don't require a special license:

Article 5 of 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 must be interpreted as meaning that the copies on the user’s computer screen and the copies in the internet ‘cache’ of that computer’s hard disk, made by an end-user in the course of viewing a website, satisfy the conditions that those copies must be temporary, that they must be transient or incidental in nature and that they must constitute an integral and essential part of a technological process, as well as the conditions laid down in Article 5(5) of that directive, and that they may therefore be made without the authorisation of the copyright holders.

This is kind of important, because if the ruling had gone the other way, basically all of the internet would be infringing, and any time people loaded up anything in their web browsers, they'd likely be infringing. Kudos to the EUCJ for getting it right, but it's kind of crazy that we had to wait until now to make that clear...

Filed Under: cache, clipping, copyright, eu court of justice, eucj, europe, incidental copies, the web, transient copies, viewing
Companies: meltwater, nla, prca

Denmark Repeals Data Retention Law's Logging Rules, Will Begin Discussions On What Should Replace Them

from the moving-in-the-right-direction dept

A couple of months ago, we wrote about an important decision handed down by the European Union Court of Justice (EUCJ) that declared the EU's Data Retention Directive "invalid." As we noted then, it was not entirely clear what national governments would do about the legislation they had passed in order to implement that Directive. From the deafening silence that has followed, we can presume that most of them are still thinking hard, but the Danish government has announced it is repealing the law's excessive logging rules at least (Google Translate of original Danish press release from Ministry of Justice):

The Ministry of Justice considers overall that there is no basis for believing that the Danish logging rules would be contrary to the Charter [of Fundamental Rights]. But the ministry has doubts whether the rules on session logging is appropriate to achieve their purpose. Justice Karen Hækkerup repeal therefore now rules on session logging.

As that indicates, the Ministry of Justice does not consider that its own particular framing would fall foul of the EUCJ's ruling, but it does admit that it had doubts about whether the data retention logging rules were appropriate, and so is repealing them. Interestingly, that may not be the whole story here. According to the Danish Politiken newspaper, the real reason the government is choosing to strike down the rules is that it lacked the votes in parliament to stop that happening anyway. Here's what a spokesperson for the opposition Left party is reported as saying (Google Translate of original in Danish):

I am pleased that the Minister of Justice has recognized that the majority behind the unnecessary session logging has crumbled. We have announced that we do not want the session logging myth persists because there is no correlation between the degree of intervention, and how effective it is as an investigative agent.

It's great to see politicians beginning to recognize that simply "collecting it all" is neither proportionate nor effective. Here's what will happen now:

The Minister of Justice will in the next parliamentary session to submit a bill to revise the total logging rules that could form the basis for policy discussions with the political parties about logging rules future design.

Let's hope that the policy discussions will reflect what we have learned about the dangers of extreme surveillance in the last year -- and that other EU countries follow Denmark's example by repealing their laws and instituting broad-based consultations on what, if anything, should replace them.

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Filed Under: data retention, denmark, eu, eu court of justice, eucj, privacy

Increasing European Moves To Block Access To Websites Accused Of Helping People Infringe Copyrights

from the slippery-slope dept

In their obsessive war on piracy, the copyright industries have tried various approaches. For a while, the "three strikes and out" was popular, until it became clear that it was completely ineffectual. At the moment, the preferred method is to try to force ISPs to block access to sites holding material that infringes on copyright. The UK led the way, and has now made the whole process pretty routine, as a recent post on the TechnoLlama blog explains:

The blocking order follow a now familiar pattern established in 20th Century Fox v BT: lawyers for the film and/or music industry go to court against UK ISPs to try and obtain an injunction that will block access on those to a specific website. The subject websites are not included as co-defendants, and their guilt tends to be assumed, or dealt with separately. The websites are then blocked at the ISP level, meaning that any person who enters "www.thepiratebay.sx" into their browser will receive a notice stating that the site is not available.

The fact that it is easy to circumvent these blocks doesn't seem to worry the industry much: either the only concern is to make it hard for less tech-savvy users to access a site, or maybe a symbolic victory is all that is required. In any case, the approach is beginning to spread in Europe. For example, Switzerland is currently reviewing the operation of copyright in a digital world, and blocking content is likely to be one of the recommendations from the AGUR12 working group -- following the usual heavy-handed hints by the USTR, as TorrentFreak explains:

According to a report obtained by NZZ am Sontagg, AGUR12 have concluded that Swiss Internet service providers should be forced to delete content if hosted on Swiss-based sites. Most controversially their final report, which is now being sent to the Justice Minister, states that ISPs should display warnings when users attempt to access unauthorized content sources while "obviously illegal sites" should be rendered entirely inaccessible.

As usual, that begs the question which sites are "obviously illegal." Meanwhile, in Belgium, the authorities continue their forlorn attempt to shut down The Pirate Bay and its proxies:

The Supreme Court of Belgium has ordered local Internet providers to proactively search for Pirate Bay proxies, and block subscribers' access to these sites. The order is one of the most far-reaching decisions when it comes to website blocking based on copyright infringement grounds. A spokesperson for Belgacom, one of the largest ISP, describes the verdict as disproportionate and unacceptable.

But perhaps the most important news on the Web blocking front concerns Europe's highest court, the Court of Justice of the European Union. The Austrian Supreme Court had sought guidance on whether injunctions could be brought against ISPs whose users were accessing sites that infringed on copyright. As is usually the case, before the Court of Justice hands down its opinion, a kind of pre-opinion is given by the Advocate General (pdf), in this case Pedro Cruz Villalón. Here's his view on the situation:

In his Opinion today, Advocate General Pedro Cruz Villalón takes the view that the internet provider of the user of a website which infringes copyright is also to be regarded as an intermediary whose services are used by a third party -- that is the operator of the website -- to infringe copyright and therefore also as a person against whom an injunction can be granted. That is apparent from the wording, context, spirit and purpose of the provision of EU law.

This bad news that ISPs can be regarded as intermediaries is tempered slightly by the following:

The Advocate General is also of the view that it is incompatible with the weighing of the fundamental rights of the parties to prohibit an internet service provider generally and without ordering specific measures from allowing its customers to access a particular website that infringes copyright.

The Advocate General adds one other qualification:

It is for the national courts, in the particular case, taking into account all relevant circumstances, to weigh the fundamental rights of the parties against each other and thus strike a fair balance between those fundamental rights.

This is not the final ruling of the Court of Justice of the European Union itself, which could take a completely different view of things, but that is unlikely. So we can probably expect to see even more Web sites blocked in Europe at the behest of film and music companies. That's a huge pity. It imposes costs on ISPs that have nothing to do with the infringement, and it distracts copyright companies from the real solution: providing better access to legal offerings at fair prices.

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Filed Under: access, blocking, censorship, copyright, eu court of justice, eucj, europe, infringement, secondary liability

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

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

EU Court Of Justice Says Software Functionality Is Not Subject To Copyright

from the good-ruling dept

We've been following the legal fight between SAS and World Programming Limited (WPL) for quite some time. If you don't recall, WPL essentially recreated some functionality of SAS's offering, not by copying the software itself or the source code, but basically by reading SAS's manuals about what its software did. The UK's High Court said this did not infringe, and the case got kicked up to the European Court of Justice (which has been pretty good on copyright issues lately). In the fall, the EU Advocates General recommended that the court make clear that software functionality is not subject to copyright, and it appears that's exactly what the court has now done.

In a relatively short ruling, the court points out that, while software itself may be covered by copyright, "the ideas and principles which underlie any element of a computer program, including those which underlie its interfaces, are not protected by copyright." Basically, the EUCJ properly recognized the difference between protecting the idea (not copyrightable) and the expression (copyrightable). The court points out that actual code can still be covered, but the features generated out of that code is a different story:

As the Advocate General states in point 57 of his Opinion, to accept that the functionality of a computer program can be protected by copyright would amount to making it possible to monopolise ideas, to the detriment of technological progress and industrial development.

Also important in the discussion is whether or not the software maker could use a license agreement to effectively prohibit this. This is a question that courts have been dealing with for a while: can you effectively remove exceptions to copyright -- or can you effectively expand the power of copyright -- via an overly inclusive license agreement. Here, thankfully, the court rejects that idea:

Consequently, the owner of the copyright in a computer program may not prevent, by relying on the licensing agreement, the person who has obtained that licence from determining the ideas and principles which underlie all the elements of that program in the case where that person carries out acts which that licence permits him to perform and the acts of loading and running necessary for the use of the computer program, and on condition that that person does not infringe the exclusive rights of the owner in that program.

[....]

It must therefore be held that the copyright in a computer program cannot be infringed where, as in the present case, the lawful acquirer of the licence did not have access to the source code of the computer program to which that licence relates, but merely studied, observed and tested that program in order to reproduce its functionality in a second program.

It's always nice to see courts getting copyright rulings right (or, at least, mostly right). It's been much rarer in the US, but it seems like the EUCJ has really been thinking a lot more carefully about copyright law lately.

Filed Under: code, eucj, european union, software copyright, uk
Companies: sas, world programming limited