By Special Correspondent Brian Ward
On June 5, the Court of Justice of the EU (CJEU) cut down a sword of Damocles that has been hanging over the media monitoring and measurement business for four years. In essence, the question was, “If your monitoring firm sends you a link to an article on line, is it breaking the law?” Thankfully, the answer was, “No.” The CJEU ruled that the act of looking at links sent by third parties does not break copyright law.
In other words, European citizens will not be penalized for clicking on a BuzzFeed link their friend sent them on Facebook.
The case began in 2010 between a group of British newspaper publishers, the Newspaper Licensing Agency (NLA), and the Public Relations Consultants Association (PRCA). The fight started when the NLA sued Meltwater, a marketing service company based in San Francisco.[emember_protected for=2-3-5 custom_msg=’This article requires a subscription. Sign up now and get 30 days of free access to the world’s best source of knowledge and insight about measurement. Or log in if you’ve already signed up.’]
One of Meltwater’s services is monitoring and creating reports on online news articles for its clients, some articles of which came from the NLA. Even though Meltwater later obtained a NLA web database license to use their articles, the NLA wanted each PRCA member who uses Meltwater’s service to pay for their own individual license. And in fact, Factiva, a competitor to Meltwater, is currently forcing clients to do just that.
The technology behind all this is pretty simple. Whenever you open up a web page or link, you create a temporary copy of the original page on your screen and in your browser cache. The premise of the NLA claim was that sending an article without their permission creates an illegal copy of the article on the recipient’s computer screen and browser cache. The problem with the NLA’s argument is those temporary copies are what allow people to look at any website, not just NLA articles. Based on the NLA’s argument, all web browsing is illegal unless you get permission to look at each web page before bringing it up onscreen.
Can you imagine the horror of trying to do a Google search on a topic and having to stop and get in contact with each website’s owner for permission? Before even looking to see what’s on the page? I probably wouldn’t have been able to write this article.
The case had been bounced up through the courts, starting at the Copyright Tribunal in the United Kingdom, before ending up in the CJEU. While the lower levels of court supported the NLA’s claim, the UK Supreme Court decided that temporary cache copies are legal and necessary for using the Internet. The UK Supreme Court decided to send the case up to the CJEU so the final ruling could be applied to all EU citizens.
“This is a crucial judgment,” said Jakob Kucharczyk, Brussels director of the Computer & Communications Industry Association (CCIA) in a response to the ruling. “Any other ruling would essentially mess up the Internet for European citizens.”
With the CJEU ruling that temporary cache and screen copies are not illegal, it means EU citizens are legally protected in their right to use the Internet. Whether U.S. citizens or residents of other countries have the same protection has yet to be determined. However, the U.S. has a longer and stronger history of “fair use” than Europe, which makes it much less likely that the same case will be reproduced in America.
“Thankfully the ruling indicates that the European Courts used common sense to toss out the lawsuit, but unfortunately it’s not directly applicable in other regions of the world,” said Doug Chapin of Chapin Consulting. “Fortunately, in the U.S. the fair use doctrine provides more explicit guidelines and websites can always opt out of search indexing if they don’t want third parties to index their sites.”
It’s interesting to note that the articles that the NLA was suing Meltwater for using were already free to view on NLA websites. ∞