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How newspapers protect their copyright interests in a digital world?

Newspaper Licensing Agency (“NLA”) is a company formed to manage the intellectual property rights of its members by licensing, and collecting the licensing fees for, making copies of newspaper content and for these purposes has promulgated various licensing schemes. NLA was formed in 1995, primarily with a view to licensing press cuttings agencies to make copies of newspaper articles to send to their clients and to license the clients to make their own copies.

Meltwater Holding BV , the Dutch parent company of a multi-national group, and its UK subsidiary (“Meltwater”). They provide a commercial media monitoring service called “Meltwater News” to business customers. That service is provided on-line only. Public Relations Consultants Association Limited (“PRCA”) is an incorporated professional association which represents the interests of its members who are UK public relations providers using the Meltwater News service. The action has been stayed against Meltwater.

Because of the proliferation of on-line media monitoring services the NLA promulgated two licensing schemes for commercial users of such services. One, taking effect from 1 September 2009, is to license media monitoring organisations, and the other, taking effect from 1 January 2010, is to license those who receive and use their services. The issue was whether PRCA and its members (“the End Users”) require a licence, Web End-User Licence (“WEUL”), from the claimants in order lawfully to receive and use Meltwater News. Meltwater asserted that it did not require a licence at all as its activities did not infringe the Publishers’ copyright. However Meltwater took the position that notwithstanding this contention it would enter into the WDL on such terms that the Tribunal determined were reasonable. Both Meltwater and PRCA denied that PRCA’s members required WEULs.

The Judge Proudman had to decide the only issue – whether the End Users infringe the Publishers’ copyright so as to require their own licences in the form of WEULs.

As it stated in judgement, Meltwater monitors a wide range of websites, including those of members of the NLA, using so-called “spider” programs to “scrape” or “read” the content. Its programs then create an index which records the position of every word in every article on every such website. Meltwater’s customer will select particular search terms (the term of art is “agents”) and Meltwater will then provide Meltwater News, a Monitoring Report with details of every article containing the agent published within a defined period, for instance the preceding day or 7 days. Meltwater News is then either emailed to the customer or the customer is given the facility to access it at Meltwater’s website.

NLA contended that in the absence of consent the End Users of Meltwater’s service will have infringed copyright in the Publishers’ headlines, and/or the Publishers’ articles and/or the Publishers’ databases in three ways:

  1. By receiving and reading Meltwater News, whether by email or by accessing it via Meltwater’s website, the End User will be making a copy of it, and the copyright material contained in it, within the meaning of s. 17 CDPA. The End User will also be in possession of an infringing copy in the course of business within the meaning of s. 23 CDPA.
  2. By clicking on a Link to an article, the End User will make a copy of the article within the meaning of s. 17 and will be in possession of an infringing copy in the course of business within the meaning of s. 23.
  3. By forwarding Meltwater News or its contents to clients an End User will issue to the public copies of the work within the meaning of s.18 CDPA.

NLA asserted that headlines to the Publishers’ articles do in some instances at least have the necessary quality of originality to qualify as literary works. PRCA asserted to the contrary that in the context of a newspaper article a headline is part of the article to which it relates and forms a single work with the article. The issues about the headlines in this case were – (a) can they have the necessary quality of originality to qualify as a literary work, and (b) are they part of the articles to which they relate?

In this case headlines involve considerable skill in devising and they are specifically designed to entice by informing the reader of the content of the article in an entertaining manner. As decided judge Proudman headlines are capable of being literary works, whether independently or as part of the articles to which they relate. In relation to text extracts the substance was a question of the quality of the extracted part rather than the quantity. Again however it is not literary quality which was in issue but the quality of originality which earned the work copyright protection.

As it stated in judgement the whole point of the receipt and copying of Meltwater News is to enable the End User to receive and read it. Making the copy is not an essential and integral part of a technological process but the end which the process is designed to achieve. Storage of the copy and the duration of that storage are matters within the End User’s control. It begs the question for decision whether making the copy is to enable a lawful use of the work. Moreover, making the copy does have an independent economic significance as the copy is the very product for which the End Users are paying Meltwater.

Therefore s. 28A CDPA (construed in accordance with Article 5 and recital (33) to the InfoSoc Directive) is inapplicable to permit the End Users to make copies with impunity. The End User does not apply his critical faculties at all to the work, whether the article or the text extracts. The purpose of Meltwater News is merely to enable the End User to decide whether he wants to see the content of the articles. Meltwater News is not intended for public consumption; it is tailored, and addressed exclusively, to particular End Users for their clients’ purposes.

Judge Proudman found that without a licence from the Publishers there was infringement of the Publishers’ copyright by the End Users in receiving and using Meltwater News.

But PRCA appealed with the permission of the judge. It contends that the judge was wrong in relation to each of following issues:

  1. The headlines to the various articles reproduced in Meltwater News are capable of being literary works independently of the article to which they relate.
  2. The extracts from the articles reproduced in Meltwater News with or without the headline to that article are capable of being a substantial part of the literary work consisting of the article as a whole.
  3. Accordingly the copies made by the end-user’s computer of (a) Meltwater News (i) on receipt of the email from Meltwater, (ii) opening that email, (iii) accessing the Meltwater website by clicking on the link to the article and (b) of the article itself when (iv) clicking on the link indicated by Meltwater News are and each of them is, prima facie, an infringement of the Publishers’ copyright.
  4. No such copies are permitted (a) by s.28A CDPA dealing with temporary copies, or (b) as fair dealing within s.30 CDPA, or (c) by the Database Regulations.
  5. Accordingly, the end-user requires a licence from NLA or the Publishers, whether or not in the form of the WEUL in order lawfully to receive and use the Meltwater News Service.

The court held that the receipt and use by an end-user of Meltwater News will constitute an infringement of the copyright of the Publishers in either or both the headlines or the articles on their websites. It follows that the end-user will require a WEUL to avoid such liability. The appeal was dismissed for the reasons given by Mrs. Proudman in her clear, careful and comprehensive judgment.