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In one of the coldest Novembers on record, Meltwater has met with a frosty response from the High Court in an online copyright case brought by the Newspaper Licensing Agency (NLA).
The dispute springs from an ongoing wrangle between the NLA (wanting to monetise its members’ website content through an NLA licensing scheme launched at the start of 2010) and Meltwater (wanting to provide links to online news, but without the need for Meltwater – or its customers – to take a licence of copyright). The NLA has alleged that, in distributing copies of headlines and article extracts to commercial customers and in providing links to articles published online, Meltwater’s media monitoring service infringes NLA members’ copyright in the articles. On that basis, the NLA is insisting that Meltwater take an NLA licence and – controversially – that Meltwater’s customers should also take an NLA licence.
But at the heart of this first-instance decision is a deeper conundrum – how to apply copyright law in the digital age. Copying proliferates in an online environment: the internet cannot function without successive digital reproductions. Common sense suggests that, for the internet to function effectively in a liberal society, certain content should be excluded from copyright protection or (if not) there should be appropriate exceptions for fair use of copyright content. In fact, that is essentially the current state of UK law. The devil is in the detail, and to date there has been very little judicial guidance on how to interpret the broad principles laid down by EU and domestic law.
The High Court has now, for the first time, considered some key, largely unanswered questions. In outline, Mrs Justice Proudman’s answers were as follows:
- Can a headline be protected as a literary work in its own right? – Yes, if the headline contains an element which is, in itself, the expression of the “intellectual creation” of the author of the article. Here, the judge followed the decision of the European Court of Justice (ECJ) in Case C-5/08 Infopaq International v Danske Dagblades Forening [2010] FSR 495, in which the ECJ found that an article extract of merely 11 consecutive words might be capable of copyright protection. “Intellectual creation” requires a sufficient degree of originality, in the sense that sufficient skill and labour must be involved in crafting the headline.
- Is a headline or text extract a substantial part of an article? – Yes, it represents a substantial part of the article in qualitative, not quantitative, terms (judged in light of the Infopaq criteria). The quality concerned is not literary quality, but the quality that merits copyright protection, i.e. a sufficient degree of skill and labour on the author’s part. The headline or extract will not necessarily reflect the originality of the whole article, but might have its own stamp of individuality reflective of the intellectual creation of the article’s author – a question of fact and degree in each case.
- Does a commercial end user infringe copyright by receiving a headline or text extract by email? – Yes at first sight (in the absence of a licence), because a copy of the email is made on the end user’s computer.
- Does a commercial end user infringe copyright by linking to an online article? – “More likely than not” at first sight (unless that end user has a licence), in that an unauthorised copy is made on the end user’s computer.
- Does the temporary-copying exception apply? – No. The exception under section 28A of the Copyright, Designs and Patents 1988 (CDPA) should be construed narrowly, and does not justify all acts of browsing. Browsing must still satisfy seven criteria, namely that the copy must be: (a) temporary; (b) transient or incidental; (c) an integral and essential part of a technological process; (d) solely intended to enable (i) transmission of the work in a network between third parties by an intermediary or (ii) a lawful use of the work; (e) without independent economic significance; (f) restricted to what is necessary for the proper completion of the technological process; and (g) stored and deleted automatically. In summary, rather than looking at the act of browsing in isolation, the judge took a purposive view in interpreting these criteria, assessing the copying in light of the end user’s objective and Meltwater’s commercial motivation, which the judge found fatal to the application of the exception. The judge also commented on a potential circularity inherent in the exception, in that “it begs the question for decision whether making the copy is to enable a lawful use of the work”.
- Is there a fair-dealing defence? – No: neither for the purpose of fair criticism or review, nor for the purpose of reporting current events. No matter how widely the first purpose is interpreted, the judge could not see that end-user activities fell within it. The second defence is intended to protect the role of the media in informing the public about matters of current concern to the public, but the Meltwater service was found not to be intended for public consumption, but tailored (and addressed exclusively) to particular end users. Besides, Meltwater’s large-scale use of copyright works without the publishers’ authority could not amount to “fair dealing”.
Accordingly, Meltwater lost the case on all counts (bar a favorable ruling on use of the publishers' databases). The High Court did not consider the effectiveness of the publishers’ online terms and conditions in any detail, whether in relation to the aggregator or the end users – which is surprising, as this is potentially relevant to the scope of permission that the aggregator and/or end users may or may not have. Further, the High Court dealt with the complex issue of the application of the temporary-copying exception in a single paragraph, in a densely packed review of the criteria for the exception and without exploring how best to interpret the potential circularity inherent in the exception. Also, the High Court did not consider at all whether the exception could apply to the “scraping” (i.e. temporary copying) required to create the aggregators’ searchable databases, considering the exception only in the context of end-user browsing.
The decision has been widely criticised by online aggregators – not just on the particular facts of the case, but also as raising wider issues about the lawfulness of ordinary internet usage. The case does not, however, rule on the lawfulness of free personal linking (or on whether the actual text of a link constitutes an independent copyright work); nor, it should be noted, has the NLA sought to impose licences on non-commercial end users. Nonetheless, the decision does touch on many difficult, unanswered questions about the legal status of online relationships and the complex nexus between statutory rights and contractual rights (on which the relevant legislation remains deeply obscure).
Meltwater has obtained leave to appeal, so the case will now go to the Court of Appeal. In the meantime, Meltwater will continue to challenge the NLA’s licensing scheme before the Copyright Tribunal.
Interestingly, the judge stated that her opinion on substantial copying was expressed “in the knowledge that the [Infopaq] decision may sit awkwardly with some provisions of English law, that many questions remain unanswered by the ECJ and that the full implications of the decision have not yet been worked out”. Due to the particular facts of Infopaq, the ECJ stopped short of answering many of the questions that arose in this case – not just on substantial copying, but also on the application of copyright exceptions. Certainly, for all concerned, the authority of a higher court would be welcome on these important points of law.
So, watch this space and, in the meantime, you are welcome to link to this article – in fact, you already have.
Ed Baden-Powell
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Simkins' early warning bulletins are for general guidance only. Legal advice should be sought before taking action in relation to specific matters. Where reference is made to Court decisions facts referred to are those reported as found by the Court. Please note that past bulletins included in the Archive have not been updated by any subsequent changes in statute or case law.
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