Summary:

A High Court judge concluded that PRs who subscribe to paid news monitors are breaking UK law by effectively copying a substantial part of o…

A High Court judge concluded that PRs who subscribe to paid news monitors are breaking UK law by effectively copying a substantial part of online news articles.

Mrs Justice Proudman’s verdict, in favour of UK publishers’ Newspaper Licensing Association (NLA) over Meltwater and the Public Relations Consultants Association (PRCA), means subscribers to paid news monitors like Meltwater must take the license the NLA this January began offering them.

The full ruling is 148 paragraphs and 14,000 words. Here are the highlights…

Infringement

“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.

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.

“(PRCA said) there was an implied licence to copy articles directly from the Publishers’ website … 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.

“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 s. 18 CDPA.”

Receiving means copying

“The total text extracted from the article on the Publisher’s website comprises the headline, the opening text and the hit extract. Under the terms of the (NLA’s license), any text extracted from an article generated using scraping techniques must not exceed 256 characters, which it is common ground means 256 characters excluding spaces.

“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, within the meaning of s. 17 CDPA (Copyright Designs & Patents Act). The End User will also be in possession of an infringing copy in the course of business ….

By clicking on a Link to an article, the End User 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 Meltwater News or its contents to clients an End User will issue to the public copies of the work within the meaning of s.18 CDPA.

“When the End User receives the email containing the Monitoring report a copy is made on the computer and remains there until deleted by the End user. When the End user views the Monitoring Report on their computer screen, or views the results of a search undertaken on the Meltwater website, a copy of the Monitoring Report or the equivalent search results is made on their computer.”

The judge interpreted that PRCA, in evidence, admitted that “receipt of Meltwater News involves copying by the End Users on their computers of material which has already been reproduced by Meltwater”.

Headlines being copied

“Headlines involve considerable skill in devising and they are specifically designed to entice by informing the reader of the content of the article in an entertaining manner.
In my opinion headlines are capable of being literary works, whether independently or as part of the articles to which they relate. Some of the headlines in the Daily Mail (LSE: DMGT) with which I have been provided are certainly independent literary works within the Infopaq test.

“I find that some of the headlines are independent literary works [and therefore falling within copyright]; those that are not form part of the articles to which they relate.

“In those cases where the headline is an independent literary work, communication of the headline is itself an infringement of the Publisher’s copyright.”

Story extracts are intellectual expressions

Meltwater customers can choose to receive either story introductions or relevant short extracts from stories.

“The next question is whether the text extracts constitute a substantial part of the articles so that s. 16(3) CDPA applies.

“On the basis of Infopaq [a previous case], the text extract and indeed the text extract excluding the headline … are capable of being substantial enough for the purposes of s. 16 (3). s. 16(3) CDPA

“In many (though not all) cases the text extracts, even leaving aside the headline, do contain elements which are the expression of the intellectual creation of the author of the article as a whole.

“As the text extract comprises not only the hit extract but also the headline and opening text, it provides the End User with as clear an idea as possible of the subject-matter and content of the article, within the constraints affecting the permissible number of characters.”

No ‘temporary copy’ defence

PRCA argued that “acts which enable browsing as well as acts of caching to take place” are exempted from infringement as merely temporary copies, under the EU’s InfoSoc Copyright Directive.

“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.

“The exception cannot be used to render lawful activities which would otherwise be unlawful. On the contrary, the purpose of Articles 2 and 3 is to ensure that copyright is protected against all forms of electronic copying unless falling within the narrow scope of the exceptions in Article 5.

“I therefore find that s. 28A CDPA (construed in accordance with Article 5 and recital (33) to the InfoSoc Directive) is inapplicable to permit the End Users to make copies with impunity.”

No fair dealing defence

PRCA argued that Meltwater is exempted from infringement by the Copyright Act’s fair dealing provision, which allows duplication for “criticism or review”. All encroachments upon this

“I do not accept this argument for a number of reasons. The InfoSoc Directive contradicts the broad interpretation proffered by (PRCA).

The End User does not apply his critical faculties at all to the work, whether the article or the text extracts. The purpose of Meltwater News is merely to enable the End User to decide whether he wants to see the content of the articles.

“However widely I interpret the expression “criticism or review”, I do not see that the End User’s activities are comprised within it.”

“In all the circumstances I find that without a licence from the Publishers there is infringement of the Publishers’ copyright by the End Users in receiving and using Meltwater News.”

Websites are not databases

Publishers argued that crawlers were also taking content from their “databases”.

“There is nothing suggesting infringement of the arrangement or structure of the website as a database. It is untenable on the case as presented by NLA to suggest that a text extract is a copy of a substantial part of the effort that went into the structure and arrangement of the articles within the website.

“I therefore do not find that the End Users need a licence to avoid infringement of the Publishers’ websites as databases. I say nothing which affects the position one way or the other in the case against Meltwater.”

Meltwater as copy facilitator, users as copiers

“The Publishers assert that Meltwater News prevents End Users from using the Publishers’ websites because it avoids the need to click through, whereas PRCA says that the Meltwater News service brings more people to the sites through affording them a hyperlink to a site which they would not necessarily otherwise access.

“There was much discussion of what was termed ‘the click-through rate’, NLA complaining that it is low and PRCA contending that it is likely to be high. The evidence does not really go beyond assertion and a few statistics and an article of little or no probative worth.

There is a logical difficulty with NLA’s argument in that on the one hand NLA says that Meltwater News diverts End Users away from reading their articles and, on the other, that it is an infringement of the Publishers’ copyright to access the article through the Link for commercial purposes.”

“I note that articles on the websites typically have a printer icon next to them, inviting the reader to print and make a hard copy of the article.”

Customers can freely use Google (NSDQ: GOOG) instead

“There is a battle royal. Each side accuses the other of spin and mud-slinging tactics.”

Meltwater, whilst it has offered to pay the NLA’s service license, can only provide its services to those of its clients who themselves also pay the NLA’s license. “The terms of any licence are a matter for the (UK Copyright) Tribunal” (case is due to be heard in February 2011).

“The Publishers have devoted very substantial resources in developing those websites and to the selection, arrangement and presentation of the material on them. Meltwater is making millions of pounds from its own activities which include ‘scraping’ the Publishers’ websites for information for its own commercial gain.

“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.

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