Newspaper Licensing Agency & Ors v. Meltwater

A recent High Court judgment has held that not only must an Internet version of a newspaper clippings agency have a licence to copy and disseminate to their clients newspaper articles, but the clients of that agency must do too. The case involved a number of questions:-
  • do newspaper headlines attract copyright under the Copyright, Designs and Patents Act (CDPA)
  • what is copying a substantial part
  • whether any exceptions apply.
The underlying facts are that Meltwater monitors a range of websites, including those of members of the NLA. Subject to a 256 character limit (excluding spaces), Meltwater will provide to its clients a link to the text of the article made up of the article’s headline together with the opening words of the article and an extract from the article (“the hit extract”) showing the context in which the search term appears. She further summarised the NLA’s argument as having three elements:-
  • By receiving and reading headline and extracts from Meltwater, whether by email or by accessing it via Meltwater’s website, the Meltwater’s clients will be making a copy of then, and the copyright material contained in them, within the meaning of s. 17 CDPA, which provides that copying a work is a restricted act, and copying here includes storing the work by any electronic means. Meltwater’s clients will also be in possession of an infringing copy in the course of business within the meaning of s. 23 CDPA.
  • By clicking on a Link to an article, Meltwater’s clients will make a copy of the article within the meaning of s. 17 and will be in possession of an infringing copy in the course of business within the meaning of s. 23.
  • By forwarding headline and extracts to their own clients, Meltwater’s clients will issue to the public copies of the work which is also an infringement of the CDPA following s.18 CDPA.
While Meltwater argued that only one copy – that for which Meltwater itself had a licence to provide – existed, Proudman J disagreed, saying that whether or not Meltwater’s clients forwarded emails to others, the mere process of clicking on a link meant that a copy was created on the clients’ computers.

Do Headlines Attract Copyright?
This has been an issue leading to much discussion and which, as an earlier blog here noted, has lead to a recent decision in Australia: Fairfax Media Publications v. Reed International Books Australia [2010] FCA 984. Whilst Proudman noted the review of previous authorities provided by Fairfax, she then went on to note that this decision – as it was Australian – did not take into account EU law, and that she was bound to consider the ECJ’s Infopaq (Case C-5/08) decision, although it did not consider headlines per se, but rather extracts from articles. She referred to para 47 of that judgment which noted that ‘isolated sentences or even certain parts of sentences’ could attract copyright. The key question is whether, in the words of the ECJ, the extract contains ‘elements which are the expression of the intellectual creation of the author’. As Proudman J concluded, the issue to assess was not so much substantiality (as in traditional case law in this area), but originality and that this test would apply whether or not the headline or the extract from the article was in issue.

Do Extracts Constitute a Substantial Part?
S. 16(3) CDPA allow the copyright owner to limit restricted acts in relation either to the work, or a substantial part of it. The InfoSoc Directive makes no mention of substantial part, so how do we construe s. 16(3) in accordance with the directive? Referring to Newspaper Licensing Agency v Marks & Spencer [2001] UKHL 38 at para 19, Proudman concluded that the relevant enquiry was to the level of skill and labour appropriated by the copier (para 74). This in turn must be understood in the light of the InfoSoc Directive, so that the key point relates to the originality and whether the extracts expression the author’s intellectual creation. In Proudman’s view, this is a restatement of the English position but does not materially alter it, thoough she accepted that many questions remained unanswered in this area. The outcome is, that small extracts may satisfy Infopaq providing they bear the stamp of the author.

Do Any Exceptions Apply?
As the automatic storing of a copy on the meltwater clients’ computers meant that there was a prima facie case of infringement, the question was whether liability could be avoided through reliance on either of: s. 28A (temporary copying) or s. 30 (fair dealing). neither exception was applicable. Suffice it to note here that the Infopaq criteria on the scope/applicability of the transient copy defence are cumulative and that the defence is related to copies which are incidental to browsing; copying which constitutes consumption of the work cannot fall within this exception – otherwise it could be used to legitimate the viewing of pirate films, for example. The fair use exceptions were – on the basis of existing law – of no help either. Interestingly, in terms of the impact of EU law, Proudman J refers once again to Marleasing principle (as reiterated by the Court of Appeal in The Commissioners for Her Majesty’s Revenue and Customs (formerly known as the Commissioners for Customs and Excise) v. IDT Card Services Ireland Ltd) and notes that the Berne Convention has no direct effect in English law and moreover, cannot displace what the ECJ held with regard to the InfoSoc Directive in Infopaq and the construction of the exceptions found therein.

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