Legal Research

End Users of online news clippings services: The NLA is coming for you.

By scott

The High court has made a ruling that could mean that copyright can be applied to aggregated online news headlines and that any business using a monitoring service may need to reach a commercial agreement with the NLA to legally view that content (even if that content is freely available on NLA member websites.

The case was between the Newspaper Licensing Association and news aggregator Meltwater (supported by Public Relations Consultants Association (PRCA )) The Court was deciding not whether Meltwater needs a licence from the NLA to provide its service but whether the End Users ? in this case the PRCA and its customers infringe publishers’ copyright so as to require their own licence to access the content from the NLA. And not only that but the NLA is going to be knocking on your dooor to collect its back pay.

The two sides are separately awaiting a Copyright Tribunal decision which will rule on the reasonableness of the NLA’s licensing terms for online content, with Meltwater disagreeing that their clients should be required to sign a licensing agreement to receive email reports containing links to the online news article, and also challenging what it describes as the aggressive fee structure and the terms demanded by the NLA licence from Meltwater’s clients.

The Meltwater service provides the linked title of an article, the opening words of the article and an extract from the article showing the key word ‘hit’ in context ? imagine your results page when you conduct a search on a web search engine. [Interestingly in this case the publishers mention they have agreements or licences with free media monitoring services such as google news/alerts and their concern was commercial exploitation].

So, the NLA contends that End Users of Meltwater’s services will have infringed copyright in the Publishers’ headlines, and/or the Publishers’ articles and/or the Publishers’ databases in three ways:
? 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.
? 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.
? 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

The PRCA argue that the Meltwater service was no different from an old ‘cuttings service’, which required the service provider to have a licence but NOT the end users unless they intended to make further copies of the cuttings. So Meltwater’s licence should also cover them.

The Judge was having none of this stating that PRCA admit to making copies ? as copies are made on their computers by displaying the Meltwater alerts, which have already been copied by Meltwater.

The Court turned to whether the headlines/extracts are copyright works. Justice Proudman drawing on the ECJ decision in Infopaq concluded “headlines are capable of being literary works, whether independently or as parts of the article to which they relate.” She said of the example provided by both sides, that “[she found] that some of the headlines are independent literary works; those that are not form part of the articles to which they relate.”

The next question was whether text extracts constitute a substantial part of the articles.

Again Justice Proudman turns to Infopaq and find that they are. And clarifying further her view on headlines she states: ” In those cases where the headline is an independent literary work, communication of the headline is itself an infringement of the Publisher’s copyright. In those cases where it is not, I see no basis for excluding the headline from the text extract?Accordingly the opening text and the headline together comprise significant and striking features of the article.”

Justice Proudman dismisses the NLA’s database infringement claims against End Users, stating that the infringement claims all relate to the content of articles and not to the arrangement or structure of the websites as a database: “It is untenable on the case as presented by NLA to suggest that a text extract is a copy of a substantial part of the effort that went into the structure and arrangement of the articles within the website.”

With regards the issue of infringement by accessing the NLA members’ websites through Meltwaters services Justice Proudman also had some difficulties with the NLA’s position. She said that ” There is undoubtedly however a tension between (i) complaining that Meltwater’s services result in a small click-through rate (ii) complaining that a direct click to the article skips the home page which contains the link to the terms and conditions and (iii) asserting that the End Users are commercial users who are not permitted to use the websites anyway.”

That said, she decide that in her opinion ” in principle copying by an End User without a licence through a direct Link is more likely than not to infringe copyright.”

She then turned to consider and dismiss the exceptions ? such as temporary copying, fair dealing, reporting current events, criticism or review - provided for in the CPDA.

Justice Proudman’s finding on the issue of temporary copying is particularly enlightening. She says: “A person making a copy of a webpage on his computer screen will not have a defence under s. 28A CDPA simply because he has been browsing. He must first show that it was lawful for him to have made the copy. The copy is not part of the technological process; it is generated by his own volition. 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. The exception cannot have been intended to legitimise all copies made in the course of browsing or users would be permitted to watch pirated films and listen to pirated music. The kind of circumstance where the defence may be available is where the purpose of the copying is to enable efficient transmission in a network between third parties by an intermediary, typically an internet service provider. The exception cannot be used to render lawful activities which would otherwise be unlawful.”

Meltwater has obtained permission to appeal the decision arguing the High Court ruling undermines the basic principles of the operation and use of the Internet. They argue Mrs Justice Proudman’s decision means that simply the browsing of copyright protected content made freely available on the Internet will infringe copyright if it is read without a rightholder licence, and the same would apply to simply using headlines of an article for bibliographic reference.

The logic of this case is all wrong. Needing a copyright licence to access content that is freely available to all on the web seems ? to me - is nothing short of stupidity. If you want to protect your content, do a Times, and put your content behind a paywall. Don’t like services scrapping your content? Fine block and stop them from doing so. This also, obviously, has ramifications for any commercial organisation who provides any kind of news updates to their clients. Do you and your clients have a NLA licence? Does it specifically cover your ability to do what you’re currently doing? If not, you may need to speak to a lawyer.

Full post as published by Information Overload on November 26, 2010 (boomark / email).