The Court was asked to resolve a dust-up between the Newspaper Licensing Agency and the Public Relations Consultants’ Association over online news “clipping” services. Was the NLA entitled to demand payment for the right to distribute news headlines? Nadine Seymour reads all about it.
Topic: Intellectual Property
Who: Newspaper Licensing Agency Limited and various newspapers against Meltwater Holdings BV, Meltwater UK Limited and Public Relations Consultants Association Limited
Where: High Court, Royal Courts of Justice
When: 26 November 2010
Law stated at: 30 December 2010
Meltwater is a news aggregator that 'scrapes' the internet to provide its end users with extracts of newspaper articles. The Newspaper Licensing Agency ("NLA") and Meltwater agreed a 'web database licence' ("WDL"), but Meltwater brought an action in the Copyright Tribunal to challenge its terms.
The Tribunal refused to decide the term in the WDL that required Meltwater's end users to obtain a 'web end user licence' ("WEUL") to use Meltwater's service. The Tribunal could not determine if it had jurisdiction to refer the question to a High Court, so the NLA brought a copyright infringement action in the High Court against Meltwater and its user the Public Relations Consultants Association.
The NLA claimed the end users infringed their members: (i) copyright in newspaper headlines and text extracts in both use of the (a) headlines, (b) opening words of the article, (c) 'hit' extracts; and (2) copyright in the newspapers' website databases. The High Court had to determine whether Meltwater's end users infringed the publisher's copyright and, therefore, required them to obtain a WEUL from the NLA.
Proudman J's judgment
Mrs Proudman J held the following:
(1) There could be copyright in headlines, which could arise both independently of the whole article or could be protected as part of the whole article;
(2) Use of the headlines and text extracts could infringe copyright; and
(3) Accessing articles by clicking on a hyperlink could be copyright infringement and breach the publishers' website terms and conditions in some cases; however, the issue was not fully considered or argued by the parties.
None of the fair dealing exemptions applied to Meltwater or the end users' activities, and the copies were not 'temporary copies' as set out under the Information Society Directive 2001/29/EC ("InfoSoc Directive").
Meltwater have since appealed this judgment.
Proudman J considered that the previous cited decisions by the English and Australian courts were heavily influenced by public policy and had not considered the recent EU case law, namely Case C-5/08 Infopaq International A/S v Danske Dagblades Forenig  FSR 495. In Infopaq the Court of Justice of the European Union ("CJEU") held that because a work may receive copyright protection where it contains "elements which are the expression of the intellectual creation of the author" as little as 11 words could receive copyright protection.
Upon reviewing the evidence, Proudman J held that there was a significant degree of skill and sweat of the brow in creating a headline and, therefore, following Infopaq a headline could be protected independently by copyright; and where it was not sufficiently original on its own the headline could be protected as part of an article.
Proudman J considered Arnold J's application of Infopaq in SAS Institute Inc v World Programming Ltd  EWHC 1829 (Ch) to the test for infringement of copyright in computer programs and literary works. Proudman J held that Meltwater's service provided its end users with the tone and a sufficiently clear idea of the whole of the article's content in order to decide whether to read the original article, thus the service "demonstrates the individuality reflective of the creation of the author of the article", and infringed the publishers' copyrights.
The NLA's members relied on their websites' terms and conditions that did not permit commercial use of the works it contained. Proudman J noted the parties did not fully argue the issue regarding the users' review and acceptance of the terms and conditions prior to use of the websites. Therefore, she took a "broad brush approach" to determining whether the licences to use the websites excluded commercial use. In taking this approach, she held that when the end user clicked on the hyperlink sent by Meltwater to access the webpage the cache was an infringing copy created on the user's hard drive, and that when the end user forwarded the link they were issuing a copy of the work. Therefore, there was copyright infringement in Meltwater's users' use of the hyperlinks.
Proudman J held that there had been no infringement of the publishers' copyright in their databases as the end user only copied and issued copies of the headlines and text extracts, but did not copy the arrangement of the database when copying the text extracts.
Infopaq set out the definition for 'transient copies' under the InfoSoc Directive. That definition is that the act of reproduction must: (i) be temporary; (ii) be transient or incidental; (iii) be integral and an essential part of the technical process; (iv) for the sole purpose of the transmission to enable transmission between third parties by an intermediary or lawful use of the network or protected subject matter; and (v) have no independent significance.
Proudman J held that Meltwater's service was not a mere technical step because their users determined how long they kept the copies. Therefore, the users could not rely on the s.28A of the Copyright Designs and Patents Act 1988 exemption and their copies were infringing.
Meltwater's service could not rely on any of the fair dealing exceptions because there was no criticism or review of the articles, the commercial use was against the terms of the publishers' websites and there was no significant acknowledgment of the authors.
Impact of decision
Users of commercial news aggregators, such as press agencies, must obtain a WEUL from the NLA. Meltwater's press statement on the decision considers the outcome creates copyright infringers of all people who browse the internet and share hyperlinks (http://www.meltwater.com/about/press-room/news-releases/meltwater-obtains-right-to-appeal-dangerous-high-court-ruling).
However, as the websites' terms and conditions influenced the issue on whether the use was infringing, Proudman J's "broad brush approach" was restricted to the commercial use of the content, and non-commercial users should not be concerned at present.
Website terms and conditions are an issue when it comes to use of content by both commercial and non-commercial users. As the High Court did not fully consider the arguments surrounding acceptance of website terms and conditions and implied licences, the impact of the judgment may be limited to the facts of the Meltwater case. However, it would be advisable to ensure that terms and conditions are reviewed for any websites where making commercial use of the content, including hyperlinks that may include newspaper headlines.
Analogous to headlines, advertising slogans may be capable of receiving copyright protection because advertisers often invest similar amounts of skilful creation into advertising slogans as is invested in newspaper headlines. Therefore, advertising slogans may receive copyright protection if the advertiser can show a court evidence of the process of creation to establish originality in the slogan. This protection could provide further forms of commercial exploitation and further revenue opportunities to advertisers.
The impact of this decision at present means that there is an opportunity for advertising slogans to receive copyright protection where there is evidence that can establish that they are sufficiently original and commercial use of content through hyperlinks may infringe copyright depending upon the website's terms and conditions. Further, headlines may receive copyright protection where they demonstrate the "intellectual creation of the author". However, this may change if there is a Court of Appeal judgment.