A couple of recent copyright cases, one in the European Court of Justice (ECJ) and one in the England & Wales High Court, have me worried about the balance between copyright and technology.
Before I begin, let me emphasise that I believe copyright is necessary to provide a reward for intellectual endeavour. There is nothing better to promote and pay for artistic and journalistic works. The problem is ascertaining an appropriate balance between the rights of copyright owners and the rights of the public and technologists. I also have a natural dislike of the use of copyright as a control mechanism, rather than as a (temporary) way to recoup commercial investment. With these recent cases I think the balance has tipped too far in the direction of rights holders. I wish to point out that this is my amateur interpretation of the cases, feel free to comment on corrections etc and do not use it as legal opinion.
The first case is C-5/08 – Infopaq International A/S v Danske Dagblades Forening (“Infopaq”) at the ECJ. The case considers a number of questions referred by the Danish Courts (Højesteret). The background is set out in the judgement, but to crudely summarise: Infopaq digitised newspapers (scan and OCR) in order to provide a searchable database of articles. A search term could then be entered and the results printed, together with an extract of 11 words indicating the context in which the search term appeared. The ECJ found that those 11 words could be subject to copyright protection if “the elements thus reproduced are the expression of the intellectual creation of their author”. The comments of the ECJ, for example in paragraphs 40 and 47, suggest that this test, in most cases, would likely be satisfied.
In the second case – The Newspaper Licensing Agency Ltd & Ors v Meltwater Holding BV & Ors  EWHC 3099 (Ch) (26 November 2010) (“Meltwater”) – the English High Court cites Infopaq and considers similar issues. Both cases rely on an interpretation of Directive 2001/29/EC (“InfoSoc Directive”). Meltwater runs a Media Monitoring Service, which involves monitoring newspaper websites to create a database of articles. Website content is scraped to create the database, which can be searched for a particular term. Like Infopaq, the service may be used by commercial organisations who wish to monitor references to their brands in the media. An email report is sent out containing a hyperlink to each relevant article, the opening words of the article after the headline, and, like Infopaq’s service, an extract showing the context in which a search term appears. One of the questions was whether an End User infringes publisher’s copyright in the articles by receiving the email, and thus requires a licence. The Court found that copyright could exist in a headline and text extract. Receipt of the email constituted making a copy and thus there was infringement (see paragraph 102).
Meltwater then continued to suggest that supply of a hyperlink may infringe copyright (in this case an End User clicking on a link, and thus creating a copy would infringe) and that forwarding the hyperlink would also infringe (see paragraph 104). The exceptions were considered and found not to apply.
Both cases appear to introduce an additional layer of legalistic worry on day-to-day digital activities. For example, the ECJ state that:
23. According to the Højesteret, it is not disputed in this case that consent from the rightholders is not required to engage in press monitoring activity and the writing of summaries consisting in manual reading of each publication, selection of the relevant articles on the basis of predetermined search words, and production of a manually prepared cover sheet for the summary writers, giving an identified search word in an article and its position in the newspaper. Similarly, the parties in the main proceedings do not dispute that genuinely independent summary writing per se is lawful and does not require consent from the rightholders.
This seems to suggest that the automation of this activity introduces civil liability. Automation necessarily involves storage of data, which in most cases is synonymous with copying. This has been considered and the InfoSoc Directive provides exemption for technological use. The exemption requires:
- the act is temporary;
- it is transient or incidental;
- it is an integral and essential part of a technological process;
- the sole purpose of that process is to enable a transmission in a network between third parties by an intermediary of a lawful use of a work or protected subject-matter; and
- the act has no independent economic significance.
However, it both cases the exemption was found not to hold. In my opinion, conditions 4 and 5 are too onerous; for example, processing thousands of articles to determine sentiment for commercial ends would not comply with 4 or 5 but in my mind could be exempt.
It is interesting that reference is repeatedly made in Infopaq to the “printing” of the search results. If a hardcopy was not made, for example the search results were viewed on a computer screen or iPad, would the finding of infringement have been the same?
Small Parts and Twitter
I have generally been impressed with the common sense decisions in cases such as Francis Day & Hunter Limited v. Twentieth Century Fox Corp Limited AC 112, wherein copyright was found not to subsist in the title “the man who broke the bank at Monte Carlo”. More cases are set out in paragraph 61 of Meltwater. I think it is very dangerous to extend protect to short passages, titles, names and headlines, especially without any straightforward exemptions for citation. Indeed one of the reasons titles were denied copyright was to allow the free citation of books and articles.
While Infopaq introduces the condition of “the elements thus reproduced [being] the expression of the intellectual creation of their author”, I think it would be difficult to prove this did not apply; every headline, even if mostly factual, has at least a scintilla of creation, e.g. word choice, placement etc.. I think the Court in Meltwater accepted this was a likely result of following Infopaq.
The result of Infopaq and Meltwater is the situation that a Tweet, or even a newsagent’s sandwich-board, containing a newspaper headline is likely a prima facie infringement of copyright. Further a Tweet with a hyperlink accompanying the headline is a further infringement, if permission has not been obtained. Clicking on the link is also an infringement. If you RT a Guardian, New York Times, Washington Post or Telegraph tweet linking to an article you may be infringing copyright. I cannot see this interpretation as being practical or commercially desirable. I would thus expect an appeal from Meltwater in due course and some clarification from the higher courts.
UPDATE: The Court of Appeal have now dismissed Meltwater’s appeal. Read the judgement: here. The concerns set out above remain. While, in this particular case, the Courts have come to the right conclusion commercially – i.e. Meltwater’s customers required a licence, some guidance is required here on use and exclusions to avoid losing the trust of common Internet users.