Last year, we touched on a difficult topic: how legitimate the work of various news aggregators is.
As it turned out, on a global scale, the picture is very colorful, and in some cases alarming. In Australia, their free activity is allowed. In the European Union, a prior license is most often required from news agencies. In the UK, the courts generally decided that a license is needed not only for news services, but for all their subscribers. In the United States, there was no clear practice at that time. Some experts confidently believed that US courts would support the free circulation of information and allow services to operate without licenses.
But not so long ago, things have changed a lot. And if in the UK the situation began to improve: in April 2013, the Supreme Court finally allowed subscribers of news aggregators not to receive licenses (although the fate of the aggregators themselves is still left to the discretion of the right holders). Then in the United States, contrary to expectations, the court took a tough stance, obliging news services in all cases to obtain consent to the use of excerpts from someone else’s information content. In Germany, in March 2013, active consideration began of amendments (the so-called “Lex Google”) to the copyright law, which would allow the borrowing of only minimal passages from the news (which ones, the courts will have to figure out). In February 2013, in France, Google went to a meeting of an association of information publishers, agreeing to pay $81 million to a special fund for the right to use their news content. So now, on an international scale, “news producers” have taken a clear advantage over “distributors.” An interesting detail: in both cases mentioned above, it was about the Dutch news aggregator Meltwater. Along with Google, it is shaping the legal landscape for online news distribution. So far, however, not in their favor. The following is a review of instructive court decisions.
On April 17, 2013, the UK Supreme Court heard the case Public Relations Consultants Association Limited v The Newspaper Licensing Agency Limited.
Recall that the specifics of the British disputes over the right to copy other people’s news is that ordinary netizens have been hit.
Meltwater has agreed to use other people’s copyrighted works and has acquired a license from the Copyright Association. But it provided for the payment of not too large a sum, always the same amount. The copyright holders wished to receive the main income from borrowing articles from the subscribers of the news service. However, their circle began to expand suspiciously quickly. The previous decision of the Copyright Court raised serious concerns that from now on, simply viewing material on the Internet may become illegal. There were reasons for this, since the courts did not recognize the digital copies of articles created on the computers of Meltwater service subscribers as temporary and auxiliary. And since copies are not temporary, their creation (even in the process of normal web browsing) is possible only with the consent of the copyright holders (under the terms of a paid license). It turned out that any access to the Internet can entail the payment of remuneration to an unimaginably wide range of copyright holders. In order not to block the operation of the network, the court tried to resolve the logical paradox. And he focused on the economic component. The court ruled that copies can be called temporary only if the articles are found by the user himself, or links to them are received by him free of charge. Obviously, this approach does not remove all contradictions. And now the Supreme Court of Great Britain has tried to unravel this tangle, returning the interests of users and the principle of Internet freedom to the forefront. He noted that when viewing sites, two types of copies of content are created: its reflection on the monitor screen and saving it in the device cache. For the purposes of stability and clarity of network relations, both cases should be freely carried out by all users of the global network. “The fundamental point is that in none of these cases will the end user be recognized as making a copy of a web page, unless he specifically chose to download or print it.” This conclusion definitively relieves users of the risks of being held liable for normal web browsing.
The Supreme Court has reviewed several decisions of the EU Court of Justice to summarize the European practice on temporary digital copies. This copyright exception is subject to the following five conditions:
– copies should be an internal and necessary element of the technological process, in particular if their production contributes to the correct and fruitful functioning of the system;
– copies must be temporary, which means: (i) they must be stored and deleted automatically, without the intervention of a user who decides to initiate or terminate appropriate technological process; (ii) the duration of copies must be limited to the duration of the relevant process;
– copies are created within the framework of a legitimate procedure (the procedure can be any, not only in the form of data transmission over a computer network (for example, receiving digital broadcasts on a television device);
– any procedure that is not prohibited by law is recognized as lawful, even if the permission of the content copyright holder has not been obtained for its commission;
– making copies should not have “independent economic value”: the procedure may be associated with profit, but the economic benefit should not arise from the use of temporary copies themselves outside the main technological procedure; accordingly, any digital copies created for the purpose of consuming (even paid) content as such have no “independent economic value”.
The Supreme Court of Great Britain has summed up: the actions of users of the Meltwater service are entirely covered by the copyright exception, which allows the free creation of temporary copies. They do not require a license to do so. Digital copies created both on the screen and in the cache memory of the device are temporary, technologically integral to the process, not prohibited by law, have no “independent economic value” (copies are needed only to read the news from the screen, nothing else). Provided, as has been stated, that the user does not download the content to the hard drive and does not print. The Court emphasized: “The copyright exemption is limited to ‘temporary’ or ‘transitional’ copies so that it is not used to justify downloading or otherwise digitally or physically copying objects that remain indefinitely until the user himself decides to erase or destroy them.” Therefore, even if the user for some reason extends the duration of the workflow (increasing the cache period or leaving the web page open), the copies are still temporary, because the process ends automatically. Among the violations, the court included situations when Meltwater sent a newsletter to subscribers’ e-mail: in this case, “permanent” copies were created on the hard drive or on the mail server. While viewing the news directly on the Meltwater website or on any other page is certainly legal. And ordinary Internet users can visit information sites absolutely freely.
On March 21, 2013, the US District Court ruled in a lawsuit filed by the Associated Press against the American division of Meltwater, finding the latter guilty of copyright infringement. Here it was about the right of the aggregator to borrow excerpts from other people’s news articles without a license at all. The defendant initially took not the most advantageous position, trying to prove that he is a kind of search service. Let’s see what came of it.
Most of the articles created by AP employees are published by its partners and licensees. To do this, AP issues permits and licenses, receiving the main profit from its activities. Services that have received licenses can provide all content to their subscribers for free. AP also issues licenses for the use of excerpts. For example, three companies similar to Meltwater have such licenses. One type of such license gives the right to distribute articles and excerpts from AP articles obtained from partner sites. The second concerns the work of aggregators that collect and transmit to subscribers a stream of excerpts from articles on a topic of interest (“excerpts” include titles and the first 140 characters of articles). The AP also owns the AP Exchange service. It allows clients to search by keywords among all articles, select topics of interest and subscribe to updates on selected keywords.
Meltwater is an international company that offers a news monitoring service in 27 countries. Similar to search engines, Meltwater uses spiders to crawl some 162,000 news sites on a daily basis in nearly 190 countries. The information found is summarized in specialized tables. The company’s clients, including commercial and non-profit organizations, government agencies, receive a selection of Internet news based on the keywords or phrases they have specified. The company’s tools automatically search online services for news articles, index them, and send verbatim excerpts to customers in response to their search queries. The collected data allows you to study the media mentions of the business, track the use of press releases, conduct comparative research and, finally, keep abreast of the most important events.
First of all, Meltwater referred to the well-known doctrine of “fair use” (fair use).
He argued that he works similarly to search services: in response to keyword queries, he provides users with short excerpts from works that serve to indicate the location of the original. The court did not agree. First, in his view, neither the purpose, the nature of the use, nor the extent of the borrowed articles are transformative or indicative of Meltwater’s good faith. The service does not add anything to the content of other people’s articles, while deriving income from their distribution. Although Meltwater claims that its mailing lists are for news and research purposes, these are in fact the work of the article creators whose work the defendant uses. And the public benefit of Meltwater’s service cannot outweigh the public interest in the news production process itself, which could be undermined if a significant portion of the profits go to intermediaries like the defendant. The court also disagreed that Meltwater could be equated with a search engine. Meltwater himself called the sign of a search engine – the simplification and expansion of free access to online information. Whereas the responder service is an expensive subscription for customers limited to searching among certain news sites. At the same time, he does little to help clients turn to primary sources, since he himself provides all the necessary information. As the court found, subscribers clicked on links on average only 0.08% of cases (curiously, the court also recalled the British process: in it the click rate on links was determined at 0.5%). By some estimates, the Google News service provides the transition 56% of the time, and the real numbers may be even higher. Thus, Meltwater is not at all like a public channel for the dissemination of any information, which search engines are supposed to be. Thus, the mechanism of the respondent’s work is not transformative, it uses someone else’s content for the same purposes – informing about the news, but does not serve the purpose of facilitating the free search for information. Neither is the purpose of borrowing passages from other people’s articles, as Meltwater does not add “a new way of saying, meaning, or message” to them. It simply selects those parts of the text that contain keywords or preface the article. Meltwater does not justify providing subscribers with such a tool for analyzing information as Dashboard Analytics. Perhaps the service itself is transformative in relation to the usual distribution of news, only it is based on the illegal reproduction and distribution of someone else’s protected content. Further, the recognition of Meltwater’s actions as bona fide is also hindered by the nature of borrowing passages: the service copied from 4.5% to 61% of the original article. In all cases, this percentage included titles and introductory summaries. As the copyright holder pointed out, it is these parts of the works that are the most creative, reflecting the intention of the authors and the essence of the subsequent presentation, i.e. “heart of the story”. The court also noted that the defendant did not provide evidence that would indicate that this principle of operation is typical for most search services, which he is trying to equal. On the contrary, the facts show that Meltwater sends a much larger volume of other people’s articles to its American subscribers than, for example, to Canadian or British ones. No explanation for this bias. And from the point of view of influence on the market, the Meltwater service competes with the plaintiff rather than creates a new market segment. What’s more, Meltwater gains an unfair advantage over other users of the copyright owner’s news content, who pay royalties for it. The US courts note that there will be no negative impact on the market if someone improves the delivery of content to consumers that is difficult for them to access in other ways, or uses the works in a way that the author is unlikely to use them himself (for example, the author barely whether he will invent a parody of his work, give it a critical analysis from the opposite point of view, etc.). Thus, most of the fair use factors, according to the court, show that Meltwater’s actions cannot be recognized as fair use of someone else’s content.
Only the circumstance speaks in favor of Meltwater, that the articles he borrowed had already been published by the copyright holder and were more of an informational nature (with sufficient elements of creativity). But in comparison with the rest of the facts, they are clearly not enough to justify the actions of the service.
Meltwater has tried to defend itself in a curious legal controversy: whether the lack of technical protection against copying of copyrighted materials can indicate that their owner is issuing an “implied license” to anyone who wants to use them. As you know, the site owner can prescribe special rules for accessing online materials in a special protocol “Robots.txt” (also known as the Robot Exclusion Standard). Based on this, some users are trying to prove that if the copyright holder did not restrict the ways in which the content can be used, then he thereby gave his consent to its free borrowing. But the courts most often do not support such assumptions. So in the case under consideration, the court pointed out: the copyright holder, indeed, could assume that his content would be used by third parties in cases permitted by law (for example, the same fair use). But this does not mean that he has allowed the use of materials in ways that go beyond the legally permissible. Thus, Meltwater itself must prove that the copyright holder had a specific intent to allow any action with its content. Prior to the presentation of such evidence, the right holder should be deemed not to have permitted the borrowing of works without his express consent. Shifting the burden of proof to the right holder, according to the court, is unnecessary in such a situation. Summarizing its thought, the court called it unreasonable to impose on the right holders the obligation to prescribe in the mentioned file all the principles for using the content. The principle of the openness of the Internet requires that search engines be able to find and index all available resources (except those that are explicitly prohibited from access). But to determine exactly how you can use the content found by the search engine is the responsibility of each individual user. The court also concluded that the right holder is not obliged to take any other measures to restrict access to content (in the form of mandatory registration, paid subscription, etc.) in order to confirm the need to obtain his consent. Even if the content is open to the public, this does not mean that any subsequent use of it, especially commercial, is automatically allowed.