Here's how The Independent reports on this week's Appeal Court decision to uphold the High Court's decision that customers of media monitoring services – which provide digests of news from websites run by newspapers – need licences from the publications involved, in order to avoid breaching their copyright.
And as much as this might surprise anyone who thought they knew that the Web is made up of web pages with unique addresses that anyone can forward, share, bookmark, embed and access – I'm afraid you're wrong. In fact, I may have broken UK law by including the link to The Independent article without having bought a license from the Newspaper Licensing Agency (NLA).
[Note to non-UK resident readers: This situation is acutely embarrassing for us Brits and I'd appreciate it if you kept this quiet. After all, our current coalition government really wants the rest of the world to think we 'get' digital.]
You see the trouble is the Court's are dealing with horse and cart in the age of the automobile. The government commissioned May 2011 review of the state of UK intellectual property law, the Hargreave's report, concludes that laws designed more than three centuries ago with the express purpose of creating economic incentives for innovation by protecting creators’ rights are today obstructing innovation and economic growth. An unequivocal conclusion if ever there was one.
The report urges government to ensure that in future, policy on Intellectual Property issues is constructed on the basis of evidence, rather than weight of lobbying.
In the original High Court decision, now upheld by the Appeal Court, Justice Proudman writes:
"The Publishers have arrangements or understandings with certain free media monitoring services such as Google News and Google Alerts whereby those services are currently licensed or otherwise permitted. It would apparently be open to the End Users to use such free services, or indeed a general search engine, instead of a paid media monitoring service without (currently at any rate) encountering opposition from the Publishers. That is so even though the End Users may be using such services for their own commercial purposes. The WEUL [Web End-User License] only applies to customers of a commercial media monitoring service."
The case goes forward to the Copyright Tribunal this September. I would like the Tribunal to review this distinction between "commercial media monitoring service" and Google. Is Google commercial? Of course; it may not charge per search but it definitely monetizes the activity very profitably in many other ways. And does Google monitor media? Erm, I think that's quite possibly a YES!
So have I broken the law here? Well it's for the Tribunal to decide whether any and every UK commercial entity needs an NLA license in order to share a link to an NLA member's web page, as I have done here and the logical conclusion I believe if the NLA's case is interpreted fully. And then I guess we'd have to decide whether I'm a commercial entity. I'm writing at home at my kitchen table in my own capacity. But isn't my motivation for writing such content as The Roundup commercial in the long run?
See you in court.