The NLA and the Copyright Licensing Agency collectively represent the vast majority of newspaper, journal and magazine publishers in the UK.
Who: Marks & Spencer and the Newspaper Licecer and the Newspaper Licensing Agency
When: June 2000
Where: UK Court of Appeal
The NLA and the Copyright Licensing Agency collectively represent the vast majority of newspaper, journal and magazine publishers in the UK. Their task is to police the unauthorised photocopying, downloading and analogue or electronic distribution of their principals’ material and to encourage those who wish to distribute press or magazine cuttings within organisations to take out CLA or NLA licences. These licences allow such use of published material on a controlled, annual basis in return for a fee. In this case M&S refused to take out an NLA licence in respect of the 500,000 or so copies of newspaper articles they photocopied and distributed internally each year, with the assistance of a press cutting agency.
The NLA sued M&S for copyright infringement and won first time round, but M&S appealed and the Court of Appeal took a different view.
There are two types of copyright in any newspaper article (excluding any copyright in photographs), first the copyright in the literary content (protecting the skill and labour of the author) and second the copyright in "the typographical arrangement of published editions". This is a species of copyright which has its roots in the days of metal linotype and printing presses, protecting the skill and labour of the typesetter.
Because ownership of the typographical arrangement copyright was easier to prove (invariably this will be owned by the publishing company employing the typesetters) than ownership of the literary copyright (newspapers often use freelance journalists under contracts which may vary as to the position on literary copyright ownership) the NLA sued only for breach of typographical copyright.
This was their undoing so far as the Court of Appeal was concerned, as the appeal judges held that the typographical copyright protected only the arrangement of the newspaper as a whole, in other words the way in which all the multifarious articles in a newspaper are put together on the pages, and not the arrangement of a single article.
This got M&S off the hook, as the copies distributed by M&S were of individual articles and there was no evidence before the Appeal Judges that sufficient numbers of articles from any single issue of a newspaper had been taken to amount to a "substantial part" of the issue as a whole.
It was not all good news for M&S, howver, as the judges threw out their "fair dealing" defence. Here the retailer argued that even if it had copied a substantial part of the typographical copyright, the defence of fair dealing for the purpose of reporting current events should apply. The Appeal judges, however, held this could not apply to copying within a commercial organisation for commercial reasons.
Why this matters:
The NLA are appealing to the House of Lords and threatening new proceedings against M&S on the basis of breach of literary copyright, so multiple photocopiers of published material without CLA or NLA licences should not sound the all clear as yet. It is also not encouraging for them that the fair dealing defence was rejected, since, although of course the Lords may take a different view, it has often been thought that the "reporting current events" line was a good fall-back position for multiple commercial copiers to take.