PRCA hails victory against NLA in the Supreme Court

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This is a guest blogpost by Ardi Kolah, the author of Essential Law for Marketers 2nd edition (£19.99) published by Kogan Page and available from Amazon.

The Public Relations Consultants Association has just made legal history with a successful appeal to the Supreme Court that could save the UK public relations industry millions in copyright licence fees that may have had to be paid to the Newspaper Licensing Authority (NLA) had the decision gone the other way.

The Supreme Court overturned the judgment of the Court of Appeal made in July 2011 and ruled that anyone should be free to visit a newspaper website without fear of infringing copyright law should they view the article on their computer screen.

The Court of Appeal had ruled that a temporary copy made within and on the screen of a computer when a user clicks on a link to an article shouldn’t be exempt from copyright law protection.

In its 23-page judgment, the Supreme Court unanimously rejected the Court of Appeal ruling and held that prior authorisation wasn’t either required or practical and applied the law as stated in two recent decisions of the Court of Justice of the European Union (CJEU) that established broad principles in the interpretation of European copyright laws.

Temporary copies created as part of the technical processes involved in viewing copyright material on a computer are dealt with by Section 28A of the Copyright, Designs and Patents Act 1988 that itself was added to UK law as a result of EU Directive 2001/29/EC that dealt with the harmonization of certain aspects of copyright and related rights.

Those in the PR industry can now breathe a sigh of relief in that they can legitimately make copies of a transient or incidental nature every time they access a news site without fear that they will have to pay a licence fee to the NLA for the privilege.

It’s likely that any legal challenge made against PR practitioners will now have to be put on hold until the CJEU ruling which could take between 12-18 months to come through.

Francis Ingham, Chief Executive of the PRCA said in an email to members: “The PRCA is very proud to have stood up on behalf of the whole PR industry for the last few years. We are delighted that the highest court in the country accepted our argument outright.”

He added:

“The CJEU is likely to report its decision at some point in 2014. As a precautionary measure, until then we suggest that you continue to pay fees to the NLA – until we hear from the CJEU next year.”

According to lawyers for the PRCA, the decision of the Supreme Court is binding on the lower courts but it’s unusual for the Law Lords to have referred the matter of its judgment to Court of Justice in the Haigh.

In his judgment, Lord Jonathan Sumption explained it was desirable that any decision on the point of accessing such content be referred to the Court of Justice for preliminary ruling “so that the critical point may be resolved in a manner which will apply uniformly across the European Union,” he said.

It’s an interesting legal argument as to whether we have to wait for the CJEU decision before knowing if the Court of Appeal’s view of the law has changed or whether the recent CJEU decisions in the Premier League (2012) and Infopaq II (2012) cases on which the Supreme Court based its judgment now takes precedence over the Court of Appeal decision.

The powerful NLA represents the commercial interests of major British newspapers including the Guardian News and Media, Express Newspapers, Independent Print, MGN and Associated Newspapers and must now consider the Supreme Court ruling a major setback given that everything seemed to be going its way.

The PRCA and Meltwater should be congratulated for having the guts to stick to their guns and to see this through against all the odds. The chances of success in overturning a point of law on the legal interpretation of Section 28A was stacked against them after they lost their appeal last year and that must have filled the NLA with even greater sense of confidence in its own arguments.

But how the courts decide such matters isn’t always predictable or certain, which makes litigation the very last option when all other avenues have been exhausted and the parties to the dispute place their future in the hands of the judges.

“I recognise the issue has a transnational dimension and that the application of copyright law to internet use has important implications for many millions of people across the EU making use of what has become a basic technical facility,” said Lord Sumption in his judgment with whom Lord Neuberger, Lord Kerr, Lord Clarke and Lord Carnwath agreed.

So the PRCA was right all along. “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,” adds Francis Ingham.

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 broken relationship between newspapers 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.

Let’s hope that together we can all look forward to a brighter and more collaborative future for both professions.