Meltwater and the newspaper publishers
As the three day hearing in the Meltwater appeal starts, Saskia Walzel catches up with a bitter 24 months legal battle
Today Meltwater is appealing the High Court ruling in The Newspaper Licensing Agency Ltd & Ors v Meltwater Holding BV & Ors . The dispute started innocently enough when the Newspaper Licensing Agency (NLA) demanded a copyright licence from paid for online media monitoring services (OMM). Depending on user base OMMs have to pay the NLA between £50 and £10,000 per year for a “Web Database License”.
OMMs like Meltwater News service basically offer keyword monitoring services to business clients for online news sources. Meltwater sends its end users a URL, linking to the publishers’ website, the title of the article, plus the opening text of the article and the “hit sentence” where the relevant keyword appears.
The “very bitter” legal battle, which started in 2009 at the Copyright Tribunal over whether the licensing terms of the Web Database License are reasonable, has escalated over the question whether end users of OMMs infringe copyright when receiving an email or clicking on a link.
The NLA together with the newspaper publishers covered by the Web Database Licence launched legal action against Meltwater and the Public Relations Consultants Association (PRCA) in the High Court in May last year, seeking a declaration to the effect that: "the PRCA and/or its members require a licence or consent from the NLA and/or the Publishers in order lawfully to receive and/or use the Meltwater News Service".
The High Court, referring to PRCA members as “End Users”, made the declaration, based on the reasoning that:
• When receiving or opening Meltwater News email, a copy of that email is made on the End User's computer, therefore the End User makes copies of the headline and the text extract, which is an infringement of copyright;
• When an End User clicks on a direct Link a copy of the article on the Publisher's website is made on the End User's computer, and the End User “is more likely than not to infringe copyright”; and
• An End User who forwards an email will make further copies and thus further infringe by “issuing a copy to the public”.
The NLA is a copyright collecting society which represents eight big UK newspaper publishers: Associated Newspapers, the Financial Times, the Guardian Media Group, the Independent News & Media, Northern and Shell, News International, the Daily Telegraph and Trinity Mirror. The publishers feel a strong grievance against OMMs’ perceived commercial exploitation of their websites. They want a share of the money made aggregating their news.
The dispute first escalated in September 2009 over “Service Fees” included in the terms of the Web Database Licence for OMMs covering online newspaper content not behind pay walls. There was to be either a 5p or 7.5p per “link” sent to each customer, or “end user”, Service Charge.
The Web Database Licence obliges the OMMs to not supply monitoring services to end users who do not pay the Service Fees to NLA or have what is called a “Web End-User Licence”, launched by the NLA in January 2010. Furthermore OMM are required to supply the NLA with contact details of all its customers, and to notify their customers that they must pay the Service Fees or otherwise get a licence from the NLA. Meltwater referred the licence to the Copyright Tribunal on the basis that it was unreasonable.
The question considered by the High Court, and today the Court of Appeal, is whether end users of Meltwater News service infringe copyright by merely receiving a Meltwater News email or clicking on a link. This puts the principles of copyright law on collision course with digital technology, where “copying” is part of the process.
In the old world, when users receive and read a newspaper article they are not thought to infringe copyright, even if the copy they are reading was made without permission of the copyright owner. Those receiving and reading paper news clippings are not required to pay a licence to the NLA.
But the high court has applied the principle of copyright law, made for the analogue world, literally to digital technologies; where receiving or opening a file involves a copy being made. Any copying of a substantial part of a work is copyright infringement, unless permission has been obtained or it falls within exceptions provided in copyright law.
The implications of this case are endless - the High Court has held that newspaper headlines are protected by copyright, and that if Meltwater emails the newspaper headline to its customers, those end users infringes copyright in the newspaper headline. How it will impact on users of what must be the biggest news aggregator of all is murky.
According to the High Court “the Publishers have arrangements or understandings with certain free media monitoring services such as Google News and Google Alerts whereby those services are currently licensed or otherwise permitted.” The High Court notes that the NLA is only seeking the Web Database License from customers of “commercial media monitoring service”, but that end users may well use Google Alerts for their own commercial purposes.
The High Court returns to the “commercial” use by end users, which is not defined in copyright law or the judgement, when ruling on the question whether clicking on a link is infringing copyright in the article on the publishers website. And delivers a mind-bender of a decision: a copy of the article on the Publisher's website is made on the end user's computer and clicking on the link “more likely than not to infringe copyright”.
End users make copies of websites when viewing them, certainly, but the qualifying issue for the High Court appears to be the argument made by the NLA that the terms and conditions of its publishers’ websites state that “they cannot be used for commercial purposes without the relevant Publisher's express consent”.
How do you enforce this? Are end users bound by terms and conditions they have not read when clicking on a link? And what do newspaper publishers such as Guardian News and Media Ltd mean by “commercial use” of their website... any viewing of articles for work purposes, or at work?
Every stage of what is developing into a legal epic seems to be throwing up more questions than answers. The ruling of the Court of Appeal is expected in a couple of weeks, and the Copyright Tribunal is to decide in September whether the terms of the Web Database Licence are reasonable. To be continued...
Saskia Walzel is policy advocate at Consumer Focus. She tweets as SaskiaWalzel
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