The Court of Appeal has reached a verdict in a dispute over digital news services involving the Newspaper Licensing Agency and the Public Relations Consultants Association as well as the defending service providers. Is there copyright in news headlines and what lessons can be learned from the case by creatives looking to use part of an article in for example tactical ads? Jonathan Mayner looks behind the headlines.
Topic: Intellectual property
Who: Meltwater / PRCA/ Newspaper Licensing Agency
When: July 2011
Where: UK
Law stated as at: 30 August 2011
What happened:
News aggregator Meltwater failed to overturn a High Court ruling which held that their online media-monitoring service, Meltwater News infringed copyright where the end-users of that service did not possess a valid licence from the Newspaper Licensing Agency (NLA). to receive and use the underlying news content. The Court of Appeal upheld the High Court’s findings on every point.
Meltwater News
The defendant companies, Dutch-incorporated Meltwater Holdings BV and its UK subsidiary (Meltwater), provide various media-monitoring services to their clients, including Meltwater News. Using “spider” programs, Meltwater is able to “scrape” media content from the internet and aggregate news stories together for Meltwater clients according to search criteria provided by the client.
The client is notified of these news articles via an update available via email or via the Meltwater website. These updates typically comprise a reproduction of the headline of the news story, a hyperlink to the article and an extract of the underlying news content which is usually a verbatim copy of the opening few lines of the article. This and similar services are used by PR agencies or in-house PR teams in large commercial enterprises as they afford an efficient and cost-effective way of monitoring the internet for coverage of one’s own business or that of competitors or clients.
NLA v Meltwater
The NLA had originally pursued Meltwater and its clients (represented in this case by the Public Relations Consultants Association (PRCA)) for breach of copyright for their failure to take up licences which would authorise their activities.
Meltwater eventually took up a Web Database Licence which authorised its aggregation and distribution of copyright media content, but the main issue at the High Court trial was whether or not the PRCA and its members (who were the end-users of Meltwaters’ services) required a Web End-User Licence to authorise their receipt and use of copyright media content via Meltwater News. Interestingly, the NLA did not pursue any line of argument contending that Meltwater was authorising the copyright infringement of others (the end-users) who did not have an appropriate licence and the trial essentially focused on end-user liability.
High Court trial
At the original High Court trial, the judge held that not only were the short text extracts of articles reproduced in Meltwater News capable of being a “substantial part” of the underlying article for the purposes of determining whether copyright has been infringed, but that the headlines themselves were capable of being literary works in and of themselves and protectable by copyright.
Given the likelihood of copyright infringement of the headlines and the underlying news content, even though Meltwater had a Web Database Licence authorising its own activities, its end-users still required a Web End-User Licence to be able to receive and use Meltwater News lawfully. Click here to read Marketinglaw’s coverage of the High Court trial.
Court of Appeal
The Court of Appeal has now upheld the High Court’s original ruling, affirming the findings stated above and reiterating that none of the claimed defences where made out. In particular the Court held that the PRCA or its members had no defence of transient or incidental copying under section 28A of the Copyright Designs and Patents Act 1988 (CPDA). This was primarily because the copies produced on the screens of the end-users had independent economic significance and were not merely incidental to some technological process.
A defence of fair dealing for the purposes of criticism and review under section 30 CDPA was also rejected, the Court finding that the end-users were not critiquing or reviewing the text extracts or underlying news articles nor using the Meltwater News service for the purposes of reporting on current events. The Court went so far as to state that even if the criteria for the fair dealing defence had been made out, it would still have held such defence as invalid as Meltwater News is a tailored service paid for by commercial entities seeking commercial advantage and as such falls outside of section 30 fair dealing, which is essentially a public interest defence.
Copyright Tribunal
The Copyright Tribunal will convene in September to hear arguments from the parties as to the fairness of NLA's Web Database Licence and Web End-User Licence and their respective fees. The impact of the Court of Appeal’s ruling may well be underscored or diminished by any findings that the Tribunal may make at that point, so an appeal to the Supreme Court may not be fully considered until after the Tribunal hearing.
Why this matters:
There has been much criticism of the High Court’s and Court of Appeal’s finding that news headlines are capable of attracting copyright protection by virtue of being independent literary works. Indeed, this does seem to run counter to the English law position that titles of literary works (such as books or songs) do not attract copyright protection. That said, some of that critical commentary does not reflect on the fact that a book title and a news headline are very different things, not least since a headline will often include some literary or editorial content and may even summarise the underlying work in a few words in a way that book or song titles, as a rule, do not. In any event, the scant reasoning given for this finding by the Court of Appeal may well leave the copyright status of headlines open to further debate at the Supreme Court should Meltwater or the PRCA make a further appeal to the UK’s highest court.
In the main this ruling is significant in that it again casts doubt on the legality and commercial viability of the Meltwater business model. Meltwater may have reluctantly paid the NLA for a Web Database Licence (at £10,000), but it may find its existing or potential customer base put-off by the additional cost of having to pay for a Web End-User Licence to render their use of Meltwater News lawful. Considering that the NLA may decide to impose retrospective licence fees on users, it may be that these Web End-User Licences will seriously diminish the cost-efficiency of using Meltwater News (or indeed any similar paid-for news aggregation service). For the time being however the NLA is unlikely to pursue licence fees from Meltwater clients until any appeal to the Supreme Court has been ruled out.
The implications of this ruling for PR agencies and other users of Meltwater News and similar aggregation services are clear.
The Court has held that without a valid licence from the NLA their use of these services will infringe the copyright of online news publishers. As such end-user organisations would be well advised to review their use of these services sooner rather than later and make some provision for the payment of a licence fee to the NLA, pending the Copyright Tribunal's findings and any appeal to the Supreme Court.
