High Court rules that there is copyright in headlines and short extracts

17-Dec-2010  |  Copyright & Media Law, Technology, Media & Telecoms


The Implications

In late November, the High Court delivered its judgment in the Newspaper Licensing Agency Limited (the NLA) v Meltwater Holding BV litigation. While this ruling relates to copyright infringement in the context of online news monitoring, it has wider implications for copyright and the Internet generally. Below, we explore some of the ramifications of Mrs Justice Proudman’s ruling.

Meltwater provides a media monitoring service, sending its customers reports of news articles including their search terms. These reports are 256 characters and include the headline, the opening words and an extract from the article giving the context of the search term. In order to compile the reports, it scrapes and indexes publishers’ websites to review and circulate their content. The litigation arose because Meltwater argues that its customers should not have to pay the licence fee which the NLA have requested because they are not infringing copyright.

Proudman J found that, without a licence, Meltwater’s customers would be infringing the publishers’ copyright. In reaching this conclusion, she made three important rulings:

  • Relying on the decision of the European Court of Justice (ECJ) in the Infopaq (C-5/08) case, Proudman J held that headlines are capable of being literary works, whether independently or as part of the articles to which they relate. Equally copying of short extracts could, as in Infopaq, amount to copyright infringement. This is provided that, in both cases, the headlines and extracts represent a work or an element of a work which expresses the author's own intellectual creation.
  • When a customer clicks on a link provided by Meltwater, a copy of the article appears on his or her computer. Proudman J held that this was "more likely than not to infringe copyright."
  • Meltwater’s customers could not rely on section 28A of the Copyright, Designs and Patents Act 1988 (the defence for temporary copies which are transient or incidental) in respect of the customers' browsing (i.e. copying) articles. Proudman J held that "He must first show that it was lawful for him to have made the copy ... Making the copy is not an essential and integral part of a technological process but the end which the process is designed to achieve."

The wider implications include:

  • The High Court has incorporated into English law a new, European, test for copyright infringement. Previously, English law required the copying of, at least, a "substantial" part of a work before there could be infringement. The European test (as set out in Infopaq) is, on the other hand, whether the copied whole or part of a work represents the "author's own intellectual creation". Proudman J followed the approach in Infopaq and, therefore, appears to have replaced the English "substantial part" test with the European "author's own intellectual creation" test, despite the clear wording of section 16(3) of the Act. Although we will have to think about infringement questions in a different way, it is an open question whether the new test will make any significant practical difference.
  • The decision is likely to put publishers off linking to third party websites. If the publisher knows or has a suspicion that there is infringing material on that third party website or if that publisher or the end-user were not authorised to access the third party website, it could well be liable for authorising copyright infringement by its readership (see, e.g. Twentieth Century Fox and others v NewzBin [2010] EWHC 608 (Ch)), even if the publisher's acts occur outside the jurisdiction (see Football Dataco v Sportradar GmbH [2010] EHWC 2911 (Ch)).
  • Proudman J made clear that there is no "browsing" defence to copying the content of a website when viewing it. When browsing the Internet, a person will be making copies of websites on their computer. It seems quite far reaching that the person must "first show that it was lawful for him to have made the copy" on his computer. How can users (or even search engines and other entities that index Internet content) demonstrate that they are lawful users? Here, it was clear that the publishers did not consent. There was no suggestion, however, how consent or absence of consent might be demonstrated in other cases (not involving piracy), e.g. through website terms of use. Answers may, however, be provided from the second Infopaq reference to the ECJ.

Lawyers Adam Rendle, Niri Shanmuganathan