The long-running dispute between the media monitoring service Meltwater and the Newspaper Licensing Agency, which last hit the news with the Court of Appeal judgment in Newspaper Licensing Agency & ors v Meltwater Holding BV & ors [2011] EWCA Civ 890, has had another airing in the Copyright Tribunal. In an interim decision in the case of Meltwater Holding BV v The Newspaper Licensing Agency, Publice Relations Consultants Association Ltd and UK Media Monitoring Association Ltd intervening, published on 14 February, the tribunal has determined outstanding issues as to copyright licensing, including applicable tariffs. The main dispute remains however in that the Supreme Court is to hear an appeal of the Court of Appeal judgment.
The case arises from a new pair of licences promoted by the NLA called the Web Database Licence (WDL) and Web End Users Licence (WEUL). The NLA contended that the nature of Meltwater’s business meant that it and its customers needed to take out WDL and WEUL agreements. Meltwater’s position was that it was prepared to enter into the WDL but did not agree that its customers needed to enter into the WEUL at all. Their position was that Meltwater’s customers, by receiving the Meltwater service, did not commit any “restricted acts” (ie any infringement of copyright) since the material sent to customers was too insubstantial to be a copyright work or to be a substantial part of the original news article. Copying the material would not infringe (if there was no licence) and so copying the material was not a restricted act. Moreover, Meltwater contended that the NLA position would involve fees from end-users that be about double Meltwater’s UK turnover.
The High Court and the Court of Appeal decided broadly in favour of the NLA.
In the course of the copyright licence reference proceedings before the Copyright Tribunal, which had been held over pending the court decisions, Meltwater raised a new proposal. This was to the effect that it would offer a “headline only” service. For any article identified as relevant it would send the user only the headline and a link to the underlying web page. They argued that although some headlines might attract copyright, most will not (or will not infringe copyright in the underlying article) and so users of a headline only service would only rarely be committing restricted acts and would not need to enter the WEUL. Any licensing could be catered for by giving Meltwater the ability in the WDL to sublicense users of that service.
The arguments focus, inter alia, on the role and status of Google News with Meltwater saying, in effect, ‘if they are not paying (or not paying much), why should we?’. The decision in the case includes many interesting reflections on the monetising of copyright content in the Internet age and the use of links. In the end, the decision, while regarding Google and Google News as highly relevant, differentiates the Meltwater service, not least because Meltwater operates as a fee-funded organisation (while Google is free to end-users).
But the main part of the judgment involves a complex analysis of the revenue models available in order to identify a fair share of the revenue that will go to the NLA. The tribunal found a middle way which appears to leave the NLA with about 8% of Meltwater revenue.
