On 26 November, the High Court ruled in favour of the Newspaper Licensing Agency (NLA) in the NLA’s action against on-line news aggregator Meltwater and the PR Consultants Association (PRCA).
The outcome is that companies will need a licence to use Meltwater’s news monitoring service (Meltwater News) and any similar services – in other words a licence merely to receive short extracts from news stories along with a hyperlink to the full story.
The full judgment in Newspaper Licensing Authority Ltd & Ors v Meltwater Holding BV & Ors [2010] EWHC 3099 (Ch) is available on baillii.
Scope of judgment
The judgment is solely on the issue of whether the PRCA and its members require a licence to receive and use Meltwater News. Contrary to statements issued by Meltwater in response to the judgment, it is not a ruling on viewing and usage of Internet content in general.
It does, however, show how easy it can be to infringe copyright on the Internet, in particular by copying small amounts of content such as extracts from newspapers. Where such copying enables a profitable business such as Meltwater, it is now more likely than ever that the content-owners will allege copyright infringement against the business and (it appears) the customers of that business.
The Meltwater News Service
Meltwater monitors a wide range of news web sites. It uses special software to ‘read’ the sites and create an index of words appearing in the news articles. Meltwater then generates customised monitoring reports for its users linking to recent articles in which certain keywords (such as brand names) appear. The monitoring reports contain:
- a hyperlink to each relevant article (in the form of the headline to the article)
- the opening text of the article
- an extract from the article in which the relevant keyword appears.
Copyright protection is possible for headlines
The court found that newspaper headlines (which Meltwater used to name its hyperlinks) could be free-standing literary works and thus protected by copyright. Alternatively or in addition, they could be protected as a part of the article to which they relate.
In reaching this conclusion, the court was strongly influenced by the 2009 decision of the European Court of Justice in Infopaq International v Danske Dagbaldes Forening. The European Court in Infopaq found that copying 11-word extracts from a newspaper article was capable of being an infringement of copyright if the extract expressed ‘the author’s own intellectual creation‘.
By the same token, the short extracts taken by Meltwater from below the headline would also be protected by copyright if, in the judge’s words, ‘[the extract] demonstrates the stamp of individuality reflective of the creation of the author or authors of the article’.
The infringing acts
Having found that the three parts of a monitoring report were likely to be protected by copyright, it was easy for the court to find infringement by users.
In particular, the court held that mere receipt of a monitoring report by email, or accessing the report on Meltwater’s web site, constituted copyright infringement by the user. This is because a copy of the newspaper extracts was, in each case, made on the user’s computer without the permission of the newspapers.
The court also held that clicking through the hyperlink in the report to access the full article (on the newspaper’s own web site) was ‘more likely than not’ to infringe copyright. However, it appears that the arguments against this (for example, that newspapers granted an implied licence to such copying) were not pursued very strongly. It is to be hoped that this aspect in particular is considered further by the Court of Appeal.
No defences available
The court considered various possible defences raised by Meltwater but found that they could not possibly be relevant to the copying in question.
In particular, it considered three particular defences:
• temporary copying: transient or incidental copying may be permitted where it is an integral part of a technological process and has no independent economic significance – however, the court found that this defence could not extend to the ‘consumption’ of works (such as the viewing of a text extract on a computer screen)
• fair dealing for the purpose of criticism or review: the court could not see how this could apply to what users did when they read and used their monitoring reports
• fair dealing for the purpose of reporting current events: while Meltwater’s activities are closely connected with the reporting of current events, this defence was held to be not applicable to users’ activities (or, it appears, to Meltwater’s) – the defence was intended to ‘protect the role of the media in informing the public’ and, since Meltwater News was not intended for public consumption, it was outside the scope of the defence.
Likely developments and implications
The High Court action is part of a wider and ongoing dispute between Meltwater and the newspaper industry that the judge described as ‘very bitter’ and ‘a battle royal’. Meltwater was given permission to appeal the decision and has said it intends to do so.
For now, any company that subscribes to news monitoring services such as Meltwater should take care as to the terms on which the services are provided. In particular, a subscriber should check whether:
- it is granted an express licence to access and use third-party content which it may receive as part of the services;
- the service provider provides an IPR non-infringement warranty and indemnity to back-up the position.
Where there is no such licence, or where the licence does not come directly from the content owner (or a licensing body such as the NLA), then a subscriber may need to take further action itself in orderto ensure that a suitable licence is put in place and that it is not exposed to infringement claims.
Mark Taylor is a Partner and Tom Wood an Associate in Hogan Lovells’ Intellectual Property, Media and Technology Group in London. Mark Taylor is an SCL Trustee.
