The Court of Appeal has given judgment in Newspaper Licensing Agency & ors v Meltwater Holding BV & ors  EWCA Civ 890 (27 July). The judgment at first instance of Proudman J has been roundly endorsed.
At first instance, Proudman J concluded that the members of the Public Relations Consultants Association (the only active appellants in the case) require a licence from NLA or the particular publisher in order lawfully to receive and/or use the Meltwater News Service (a media web site monitoring and alerting service). Her reasons for that conclusion were:
(1) The headlines to the various articles reproduced in Meltwater News are capable of being literary works independently of the article to which they relate.
(2) The extracts from the articles reproduced in Meltwater News with or without the headline to that article are capable of being a substantial part of the literary work consisting of the article as a whole.
(3) Accordingly the copies made by the end-user’s computer of (a) Meltwater News (i) on receipt of the email from Meltwater, (ii) opening that email, (iii) accessing the Meltwater website by clicking on the link to the article and (b) of the article itself when (iv) clicking on the link indicated by Meltwater News are and each of them is, prima facie, an infringement of the Publishers’ copyright.
(4) No such copies are permitted (a) by s.28A CDPA dealing with temporary copies, or (b) as fair dealing within s.30 CDPA, or (c) by the Database Regulations.
(5) Accordingly, the end-user requires a licence from NLA or the Publishers, whether or not in the form of the WEUL in order lawfully to receive and use the Meltwater News Service.
The Chancellor, Sir Andrew Morritt, said:
‘I would dismiss this appeal for the reasons given by Proudman J in her clear, careful and comprehensive judgment. That said I consider that the declaration she made goes further than her findings or my conclusions warrant. It is not the case that every recipient and/or user of Meltwater News will inevitably infringe the copyright so as in all cases to require a licence or consent from the publisher. There may be some cases in which neither the headline nor the ‘scrapings’ constitute a copyright work or a substantial part of a copyright work. A licence would not be required in such a case but there cannot be many of them.’
The outcome is that companies will need a licence to use Meltwater’s news monitoring service (Meltwater News) and any similar services – in other words a licence merely to receive short extracts from news stories along with a hyperlink to the full story.
Francis Ingham, Chief Executive of the PRCA, is quoted on a sympathetic blog as saying ‘We will be seeking leave to appeal to the Supreme Court as part of this ruling is unfair and unreasonable and has implications for the wider public, not just the monitoring and PR industry. It’s an absurd ruling and one that we are very concerned about. It’s a fundamental thing, not just affecting businesses, but potentially criminalising millions. I think the law is running about 20 years behind everyone else here, and the judgements reflect the fact that they haven’t kept pace with how the web has developed.’
The Managing Director of the NLA, David Pugh, said:
“The Court of Appeal has today unequivocally confirmed the ruling of the High Court that online newspapers are copyright protected. It has given a clear declaration that most (if not all) businesses subscribing to a media monitoring service that contains content from online newspapers require a licence. We welcome this ruling and the clarity it provides for publishers, media monitoring agencies and their clients.
“This positive interpretation of UK copyright law provides legal clarity and certainty for all players in the market. Publishers can be sure of fair royalties for the use of their content, suppliers of paid-for online monitoring services will benefit from a level playing field and clients of such services know that their licence provides a simple way to guarantee compliance with the law.
“It also provides a clear vindication of our decision to have two licences, one for paid-for online monitoring service providers and one for their customers. Now we have legal clarity, we look forward to the Copyright Tribunal review of the commercial aspects of newspaper website licensing. The NLA would like to see as swift and complete a resolution as possible for all parties – publishers, media monitoring companies and their clients. Eighteen leading media monitoring organisations have already taken web licences, and they, like us, want a fair and equitable system.”
For the full judgment of the Court of Appeal, see http://www.bailii.org/ew/cases/EWCA/Civ/2011/890.html