News Aggregation: Lessons so far from The NLA v Meltwater Dispute
The Newspaper Licensing Agency (the NLA) is in the midst of a legal dispute with a news aggregator and monitoring agency, Meltwater.
The Newspaper Licensing Agency (the NLA) is in the midst of a legal dispute with a news aggregator and monitoring agency, Meltwater. The Public Relations Consultants Association Limited (PRCA), which represents the interests of its UK public relations provider members, is supporting Meltwater in the dispute.
The dispute surrounds Meltwater’s provision of online media monitoring services to its customers. Customers select search terms and Meltwater sends them reports of articles containing those search terms. The reports include the headline of an article (which hyperlinks to the article), the opening words of the article and an extract showing the context in which the search term appears. It does this by monitoring a wide range of websites using “spider” or “bot” programs to “scrape” or “read” the content. It then creates an index which records the position of every word in every article on every website monitored.
The dispute arose when the NLA introduced two licensing schemes: one imposing a charge on media monitoring organisations and the other for end users of those monitoring services. So far, there have been two forums for the dispute:
- Meltwater referred the NLA’s two licensing schemes to the Copyright Tribunal, arguing that the terms were unfair. The Tribunal will hear the dispute in September 2011, rather than February 2011, as originally scheduled. The Tribunal will determine the terms of the licence to Meltwater and possibly the terms of the end user licence (depending on the outcome of the copyright litigation explained below).
- In the meantime, the NLA commenced High Court litigation against Meltwater and PRCA. The issue in the case was whether Meltwater’s end users, such as PR agencies, need a licence from the NLA. In relation to its own NLA licence, Meltwater did not dispute that it has to take a licence but takes the position that the terms are unreasonable. The High Court gave its ruling in November 2010. The conclusion reached was that without a licence, end users are infringing the publishers’ copyright. Therefore a licence is also required for end users. The decision is currently under appeal and will be decided by the Court of Appeal before the Tribunal hearing in September 2011.
- If the Court of Appeal confirms the High Court decision, the next stage is for the Tribunal to determine the terms of the end user licence as well as the standard licence that the NLA issues to news aggregators themselves.
In the meantime, when it comes to news aggregation, we have some guidance on what activities require a licence from Mrs Justice Proudman:
- Headlines are capable of being literary works, whether independently or as part of the articles to which they relate and are often protected by copyright. Therefore, a licence will be required in many cases when reproducing headlines.
- Equally copying extracts could amount to copyright infringement. The European Court of Justice (whose decisions are binding on UK courts) ruled recently1 that 11 words of copying may amount to copyright infringement if what is copied represents "an element of the work which expressed the author's own intellectual creation".
- By receiving and reading the report from Meltwater, the end user will be making a copy of the relevant publisher's headline and part of the article. The end user will also be in possession of an infringing copy. By forwarding on copies of the report to other people, the customer will be issuing further copies. These are all potentially infringing acts. The situation is not comparable with the old press cuttings business model where there was only one copy inherent in the process which had to be licensed. The electronic business model involves the creation of multiple copies, all of which must be licensed.
- The terms and conditions of some of the publishers' websites stipulate that paid for media monitoring services and their customers require a licence to use the content. The publishers’ argument is that without a licence, use of the content is infringing and in breach of contract (on the basis of the terms and conditions of the website). Proudman J commented that she had not been taken to any authority on the effect of incorporation of terms and conditions through small type. Unfortunately, the judge does not come to a decision on whether the publishers’ terms and conditions were binding on Meltwater, such that a contract existed between them. However, it seems unlikely that there would be a contract unless users of the website are required to actively confirm they have read the terms and conditions before accessing material on the relevant website.
- When an end user clicks on a link included in a Meltwater report, a copy of the article appears on his or her computer. The judge commented "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 does not explore Meltwater's liability for providing the link. However, there would seem to be an argument here that Meltwater authorises infringement by providing a link to its customers. This is a particularly interesting finding, suggesting that users of the internet can find themselves inadvertently infringing copyright by clicking on links to websites which they do not have express or implied permission to access. In the majority of cases, it is likely that a publisher of a website grants the public an implied licence to access its content. Where there is likely to be an issue is where a link bypasses a paywall or registration process. It is expected that the Court of Appeal will give clearer guidance on this issue.
Like all those in the news and news aggregation industry, we await the Court of Appeal’s decision later this year with interest. If the Court of Appeal endorses the High Court’s decision, Meltwater’s customers will find themselves paying both Meltwater and the NLA for monitoring reports.
1Infopaq International v Danske Dagblades Forening  FSR 495 – In that case, the ECJ concluded that copying of an extract of 11 consecutive words from an article constitutes reproduction in part for the purposes of Article 2 of the InfoSoc Directive, provided that those words had the necessary quality of originality. In that case the monitoring report contained only the search term and the five preceding and five subsequent words, the equivalent of the hit extract in the present case with no headline and no opening text.
"Read about the NLA v Meltwater litigation - we explain what it's all about and the lessons learned so far"
"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." Mrs Justice Proudman