Bently slams "very disappointing" ruling in Meltwater

The IPKat's email in-box has been bulging at the seams since he posted his pieces yesterday on the two big copyright cases of Lucasfilm v Ainsworth (here) and NLA v Meltwater (here).  For one thing, he has discovered that there are a lot of angry Americans who don't like Lucasfilm.  For another, he has discovered that no less an academic than Professor Lionel Bently has had some harsh words for the Meltwater ruling. He comments thus:

"The Court of Appeal decision in NLA v Meltwater is very disappointing indeed. The Court, lacking the presence of anyone with a real knowledge of intellectual property [Alas, says Merpel, this is not the first time that has happened -- but that will have to be the subject of a separate post], has merely affirmed the reasoning of Proudman J. adding very little, if anything, of analytic value. In part, this was possible because of the peculiar form of the declaration being sought against the PRCA. The Court took advantage of the vagueness inherent in the form of order sought, merely affirming that Proudman J was right when she found that in some circumstances PRCA memners who received the Meltwater news service would themselves infringe. In so doing, the Court of Appeal ducked the difficult issue of precisely when the activities of a given PRCA member would infringe. Rather than setting the court of first instance straight, examining the law and the facts with rigour and a view to the consequences, the Court chose not to confront the difficult issues of law and its application with which it was faced. 

Firstly, the Court affirmed the judgment of first instance that, by copying the titles and short extracts of newspaper articles, PRCA memners would somtimes infringe copyright. In so doing, it referred to case law that suggested titles may sometimes be protected, but failed to explain away other statements that titles will rarely be substantial enough to constitute works. 

The Court appears too, to have cowered in the face of being asked to make a qualitative judgment (that titles will only be protected in exceptional circumstances) that it did not even bother to consider the consequences of the protection of titles for freedom of expression more generally. Those involved in all sorts of businesses which involved reproduction of titles of books, films, sound recordings and so on will now be left to wonder in what circumstances, if any, they will be infringing copyright. Moreover, it must be doubtful whether such a conclusion will be particularly useful to the Copyright Tribunal when deciding on what is a reasonable fee for PRCA members to pay. 

Secondly, the Court of Appeal failed to engage at all with the criticisms of Proudman J's decision on section 28A concerning temporary copies. There is no engagement whatsoever with the travaux behind Article 5(1) of the Information Society Directive and no attempt to engage with its purpose. 

The Court instead simply adopts Proudman J's view that a "consumptive use" such as accessing a web-page falls outside the purview of the provision. 

This means that its utility is confined merely to the making of copying by third parties in transmission systems, even though recital 33 clearly indicates that the Article is aimed at facilitating "lawful use" of a work. 

The Court seems to have missed the fundamental point that browsing -- looking at a web-page -- does not involve an infringement and is perfectly lawful (unless in breach of some sort of security provision). Article 5 is intended, amongst other things, to "enable" such legal acts of browsing: temporary copies created to facilitate such browsing are deemed non-infringing. Remarkably the Court adopted NLA's claim that these acts failed to meet any of the conditions in Article 5. 

Once again, the Court makes no reference to the consequences of such a holding. In the absence of an express or implied licence, hereafter web-users surf the internet at their peril. If a site prohibits access to certain users (commercial users for example, as many newspaper sites do), the browsers acts becomes ipso facto immediately infringing (because the copies inevitably made are outside Article 28A). For sure, very few actions will be taken against such users. But there is something fundamentally wrong with a legal regime which renders the innocent acts of many millions of citizens illegal".

Disclosure: Lionel was advising Meltwater and the PRCA in these proceedings.

This Kat's own personal views are somewhat different, not least because he thought the trial judge and the Court of Appeal got it right. However, he greatly respects Lionel's opinions and thinks that they should never be ignored. In any event, Lionel must be right that this decision will be of little use to the Copyright Tribunal when ascertaining a fair licence fee for PRCA members and he is also correct that the vast majority of titles never even come within sniffing distance of substantiality in terms of copyright protection -- but it's not easy to see precisely what weight should be given to that statement of statistical truth within the context of this case.

The position that "there is something fundamentally wrong with a legal regime which renders the innocent acts of many millions of citizens illegal" is a tricky one. Every day, on the London Underground, millions of innocent commuters push past (and occasionally through) one another when seeking to get on or off trains, overtake on the escalators and so on. Every such contact is at least potentially a civil wrong, a tort of battery, yet we are prepared to tolerate the illegality of these acts. Is internet browsing in all its varied forms the same, or different?

Do please let the IPKat know what you think!