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Clippings service users must pay to access web links, says High Court

Out-Law News | 26 Nov 2010 | 4:08 pm | 5 min. read

Customers of news monitoring services must have a licence from newspapers to receive emailed material from clippings services, the High Court has said. Using clippings services without a licence is copyright infringement, the Court has ruled.

A licensing agency representing newspaper publishers has won its case against a news monitoring company which claimed that no licences were needed for it and its clients to access newspaper websites.

The company, Meltwater, took out a licence for itself but said that its clients should not need one to read the stories it sent to them.

The High Court has said that Meltwater and the end users all copy material belonging to newspapers and that this copying is not subject to any of the exceptions contained in the Copyright, Designs and Patents Act (CDPA). Copyright infringement, therefore, takes place if recipients do not have a licence.

The Newspaper Licensing Agency (NLA) is a body representing newspapers that collects licence income for clippings services. Traditionally these have involved copying and collecting articles mentioning, or of relevance to, clients. Meltwater operates a digitised service which sends emails to clients with headlines, snippets and links to stories concerning clients.

The NLA said that clippings agencies and their customers needed a licence to make this use of newspaper-published material because it was a commercial use.

Meltwater disagreed that it needed a licence but took out the £10,000 licence for clippings services anyway. It disputed, though, that its clients, or end users, also had to pay the NLA in order to avoid infringing copyright when using Meltwater services.

"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," said the High Court ruling. "It would apparently be open to the End Users to use such free services, or indeed a general search engine, instead of a paid media monitoring service without (currently at any rate) encountering opposition from the Publishers. That is so even though the End Users may be using such services for their own commercial purposes. The WEUL (web end user licence) only applies to customers of a commercial media monitoring service."

The NLA said that there were several reasons why end users needed a licence.

"By receiving and reading Meltwater News, whether by email or by accessing it via Meltwater's website, the End User will be making a copy of it, and the copyright material contained in it," said the High Court ruling, outlining NLA's argument. "The End User will also be in possession of an infringing copy in the course of business within the meaning of section 23 of CDPA."

"By clicking on a Link to an article, the End User will make a copy of the article within the meaning of [section 17 of the CDPA] and will be in possession of an infringing copy in the course of business within the meaning of [section 23]. By forwarding Meltwater News or its contents to clients an End User will issue to the public copies of the work within the meaning of section 18 CDPA," the ruling said.

Mrs Justice Proudman had to decide whether any copying by end users took place, and if it was the kind of copying that the CDPA is designed to prohibit.

She examined whether or not headlines could attract copyright protection.

"In my opinion headlines are capable of being literary works, whether independently or as part of the articles to which they relate," she said. "However, I am unable to rule in the abstract ... I find that some of the headlines are independent literary works; those that are not form part of the articles to which they relate."

A European Court of Justice ruling last year in a similar case found that extracts as short as 11 words could attract the protection of copyright in a case involving Danish clippings service Infopaq.

"The effect of [the Infopaq ruling] is that even a very small part of the original may be protected by copyright if it demonstrates the stamp of individuality reflective of the creation of the author or authors of the article," said the High Court. "Whether it does so remains a question of fact and degree in each case. It is often a matter of impression whether use has been made of those features of the article which, by reason of the skill and labour employed in its production, constitute it an original copyright work."

Mrs Justice Proudman said that Meltwater's activities did not infringe the protections that companies have for the structure or arrangement of databases. Though a website could be a database, it was content that was copied and not the database or any structural element of it, she said.

She found that end users' activity did involve copying of material.

"When an End User receives an email containing Meltwater News, a copy is made on the End User's computer and remains there until deleted. Further, when the End User views Meltwater News via Meltwater's website on screen, a copy is made on that computer," said the judge.

"Therefore the End User makes copies of the headline and the text extract in those two situations and there is prima facie infringement. When an End User clicks on a Link a copy of the article on the Publisher's website which appears on the website accessible via that Link is made on the End User's computer," said the ruling.

Mrs Justice Proudman said that the websites often carried terms and conditions forbidding commercial use of them, but that the arguments on whether or not there was an implied licence were not clearly enough made in the case.

"However it seems to me that in principle copying by an End User without a licence through a direct Link is more likely than not to infringe copyright," she said. "An End User who uses the share function to forward a headline Link (and ... an End User who simply forwards an email) to a client will make further copies and thus further infringe. Such forwarding will also be issuing a copy to the public under section 18 of the CDPA."

This all constituted copying that could break the law, but the Court had to assess whether exceptions to the law applied to it.

Mrs Justice Proudman said that an exception for transient copying could not apply. " The exception cannot have been intended to legitimise all copies made in the course of browsing or users would be permitted to watch pirated films and listen to pirated music. The kind of circumstance where the defence may be available is where the purpose of the copying is to enable efficient transmission in a network between third parties by an intermediary, typically an internet service provider," she said.

The CDPA contains exceptions for fair dealing for the purposes of review or criticism and reporting the news. Neither of these applied, and neither did the more general principles of fair dealing, said the judge.

The Court ruled that users of Meltwater's services would have to have an NLA licence to use those services if they were to avoid breaking the CDPA.

When the NLA launched its online licence in 2009 commercial director Andrew Hughes told OUT-LAW Radio that copyright licences were essential because of the extent of copying involved in media monitoring agencies' businesses.

"They have robots which goes to the newspaper websites they make a local copy of that content then they search that local copy that they have created for relevant stories for their clients and send their clients links to those articles so there is a, in some cases they are actually selling the data as a database to third parties," he said. "We hope ultimately they feel that if they are engaged in that type of activity it is much better to be with the consent the publishers than on the assumptions that publishers might not mind."