On Monday 11 February 2013 the Public Relations Consultants Association makes legal history by appealing to the Supreme Court on a decision affirmed by the Court of Appeal in favour of the Newspaper Licensing Agency (NLA) that represents the commercial interests of major British newspapers including the Guardian News and Media, Express Newspapers, Independent Print, MGN and Associated Newspapers.
At stake is the right for anyone to visit a newspaper website without fear of infringing copyright law should they incidentally copy the material of an article to their device.
The chances of success in overturning a point of law on the legal interpretation of Section 28A of the Copyright, Designs and Patents Act 1988 is stacked against the PRCA and Meltwater, the online provider of media intelligence to the PR industry.
In the Court of Appeal, which followed the original High Court ruling, the judge decided on the scope of what’s known as the ‘temporary copies’ exemption to copyright protection. The Court of Appeal agreed with the High Court that a temporary copy made within and on the screen of a device when a user clicks on a link to an article shouldn’t be exempt from copyright law protection.
There are a number of hurdles that need to be cleared in order for the appeal to be successful – the act of copying is temporary, transient or incidental; the act must be an integral and essential part of technological process; the sole purpose of that process must be to enable transmission or lawful use; and the act must have no independent economic significance.
The core argument of the NLA is that the exemption from Section 28 shouldn’t extend to users of paid-for monitoring services and that the temporary exemption was only intended to apply to internet service providers to make the internet function.
“A temporary copy created on the screen of a computer simply as a technical necessity to allow the user to read the article shouldn’t be considered unlawful simply because one reads the work on a computer or other device as opposed to print. Temporary copies are made purely as a necessary part of the technological process to enable the user to do the lawful act of reading. In addition, they provide no additional independent economic advantage to the user reading the work and shouldn’t be seen as infringement of copyright law.”
Leaving aside the legal arguments for and against the narrow interpretation of a highly complex area of intellectual property law, what this case illustrates is the state of the relationship between the press barons and the PR industry.
Understandably, the newspaper industry is having to reinvent itself for the digital age and it’s fair to say it’s still struggling to find its feet in the wake of falling newspaper and advertising revenues, although visits to news websites has never been healthier and those in front of the pay wall are clinging on to a view of the world that’s rapidly out of date.
Instead of fighting the PR industry, the answer is to work with some of the brightest and most creative minds in the UK to navigate a way forward where more interest is generated in the product by making it more widely available rather than to restrict access to content which may not actually be enforceable.
It’s a case of MAN BITES DOG!
Ardi Kolah is the author of Essential Law for Marketers (£19.99) published by Kogan Page. Click the cover to order your copy today!