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A decision on June 5 by the European Courts of Justice that the act of browsing an Internet site does not constitute a copyright violation may sound obvious. But this concept isn’t necessarily clear cut in the field of copyright law, even in the United States.
In this particular case, a group of newspaper publishers decided that the act of sending story links to third parties violated the copyright to those stories because the people who then viewed those pages were making an illegal copy on their computer screens and browser caches.
Those publishers sued Meltwater, a marketing services company based in San Francisco, when Meltwater started sending out links to newspaper articles to its clients. Initially, the Newspaper Licensing Agency took action in the Copyright Tribunal in the United Kingdom, which held that Internet browsing did, in fact, constitute illegal copying. Meltwater appealed, eventually to the Supreme Court of the United Kingdom.
Making the situation even more strange is that the newspapers represented by NLA already had posted their own stories on the Web, so they were available for anyone to read if they visited their Websites.
The NLA was trying to sell licenses to Meltwater and to its customer the Public Relations Consultants Association. So the licensing agency wanted the PR folks to pay to look at the Websites that anyone could browse to and look at for free.
“It’s mind-boggling,” Meltwater CEO Jorn Lyseggen told eWEEK, when he was reached in Accra, Ghana. “To our astonishment, they were able to establish a couple of principles that were in contrast to what most people take for granted,” Lyseggen said. “The principle is that if a person is browsing the Internet, the copies on the screen and cache represent a potential infringement.”
You may ask yourself what the newspapers thought people would do with their respective Websites if not look at them. As it turned out, the Supreme Court of the United Kingdom wondered the same thing. But the court also noted that those supposedly illegal copies were necessary to use the browser technology and that by browsing to a site, those users were simply acting as they must do to use the Internet.
The reason the case ended up in the EU’s top court is that the Supreme Court of the United Kingdom felt that the final decision should be applicable across the entire EU. But to achieve that end, the European Courts of Justice had to make the decision. The court did, in fact, find that making temporary copies on a screen and in a cache was a necessary temporary copy, and because of that, it was covered by current European law.
If it sounds as if this is one of those things that can only happen in Europe and doesn’t apply to U.S. copyright law, think again. The same theory has already raised its ugly head in assertions surrounding the Digital Millennium Copyright Act in the United States.
EU Court Finds That Web Browsing Doesn’t Violate Copyright Law
But there are differences between U.S. copyright law and similar laws in the EU. “Fair use is a concept in U.S. law,” Ed Black, president and CEO of the Computer and Communications Industry Association (CCIA) in Washington, D.C., told eWEEK. European law had a specific exception allowing temporary use of copies in the course of browsing the Internet, Black said.
So, by now you’re asking yourself why—if the EU already has a law allowing Internet browsing—was the NLA demanding payment for licenses for content that was already freely available on the Internet?
The European court also wondered and then explained, in legal step by painstaking step, why the NLA’s payment demand didn’t make sense—just so there would be no doubt in any one’s mind. The court also noted that the newspaper publishers were already making the information available to anyone who wanted to see it and also wondered what they were thinking.
But this shouldn’t be taken lightly. The potential for disrupting the use of the Internet and the economies that depend on it are significant. “An adverse ruling in this case could have left the door open for publishers of potentially any form of content to claim copyright infringement whenever a link is viewed over the Internet,” Meltwater said in a prepared statement after the ruling. “This would have threatened basic tenets of Internet freedom and could have had untold negative and unfair impact.”
“This is a crucial judgment,” said CCIA Brussels Director Jakob Kucharczyk in a prepared statement. “Europe’s judges have clearly established that Internet users do not breach copyright when browsing the Internet—probably the single most important activity of millions of Internet users. Any other ruling would essentially mess up the Internet for European citizens and undermine the efforts to enable European technology companies to expand in the Internet economy.”
“Despite the ruling,” Kucharczyk added, “one cannot overstate how irrational this case was to begin with. It’s hard to believe the question at stake was whether browsing the Internet is legal or not. Even though the court has provided a clear answer to that question, one must wonder whether our copyright regime is apt for the digital era. This was not the first copyright case challenging the foundations of Internet use, and policymakers will have to ensure that copyright rules will not continue to threaten the growth in the Internet economy.”
Unfortunately, until legislation makes it perfectly clear, the use of the Internet as we know it is always subject to the misunderstanding of some judge or court somewhere.
What’s scary is that while the decision in the EU can serve as a precedent in the United States, it doesn’t have to. Courts in the United States are free to interpret copyright law however they wish unless the U.S. Supreme Court takes a stand and no one knows when or if that might happen.