In a decision handed down on 17 April, the UK Supreme Court has asked the European Court of Justice to determine whether viewing content online by clicking a weblink might infringe copyright if done without a licence.
The case before the Supreme Court is the result of an appeal from a 2011 decision of the UK Court of Appeal regarding a media monitoring service provided by Meltwater. The Court of Appeal held that Meltwater had infringed copyright by reproducing and communicating headlines and extracts from newspaper articles.
The Court of Appeal also held that Meltwater’s customers needed a licence to view the newspaper articles online by clicking links. It is this aspect of the decision that was appealed to the Supreme Court.
The Supreme Court decision does not affect the licensing of media monitoring activities by Newspaper Licensing Agency (NLA), on behalf of owners of copyright in newspaper articles (NLA statement here). A recent District Court decision in the US last week also confirms Meltwater’s need for a licence in the US (see also here). In Australia, licensing arrangements are affected by the Federal Court’s 2010 decision in Fairfax v Reed, which held that the headlines at issue in that case were not protected by copyright.
On the question of temporary copies, the UK Supreme Court reviewed decisions to date of the European Court of Justice (CJEU), and was inclined to overturn the decision of the Court of Appeal. Given the implications of the issue for transnational use of content, however, the Supreme Court has referred the issue to the CJEU for determination. According to the NLA, that may take years.
In Australia, there are provisions in the Copyright Act that allow temporary copies made as part of the technical process of communicating or ‘using’ a work. These provisions may not apply to temporary copies associated with an infringing communications or reproduction.
The Supreme Court decision, and future ECJ decision, do not affect the legal position in Australia, but may be taken into account by the Australian Law Reform Commission as part of its inquiry into copyright and the digital economy.
Some commentary on the case:
- UK Supreme Court refers NLA v Meltwater to CJEU (IPKat)
- NLA v Meltwater: temporary copies issue referred to the CJEU (The 1709 blog)
- The NLA v Meltwater – three things to remember this week (NLA blog)