Meltwater: US Proceedings

Following up on Jeremy's post, readers may be interested to learn that the AP has issued the following press release:

"AP Press Release
AP files lawsuit against Meltwater NewsSubscriber-only service uses unlicensed AP content to compete against AP
NEW YORK – The Associated Press today filed suit against Meltwater News for copyright infringement and “hot news” misappropriation. Using unlicensed verbatim AP content, Meltwater delivers a service to paying customers that competes directly with AP and its customers, the suit claims.
The suit was filed Tuesday, Feb. 14, in the U.S. District Court for the Southern District, in Manhattan, by the law firm Davis Wright Tremaine, representing AP.
As a subscriber‑only service, Meltwater distributes “Meltwater News,” which styles itself as a modern-day electronic clipping service with a guarantee of “no copyright fees.” Meltwater delivers to its paying customers substantial verbatim excerpts from AP stories and other published news stories based on keywords selected by its customers. As AP’s complaint alleges, Meltwater also offers its customers the ability to store these excerpts, as well as full-text articles, in a customer archive housed on Meltwater’s server and facilitates the incorporation of AP articles into customer newsletters to be further distributed.
“Meltwater News is a parasitic distribution service that competes directly with traditional news sources without paying license fees to cover the costs of creating those stories,” said Tom Curley, president and CEO of The Associated Press. “It has a significant negative impact on the ability of AP to continue providing the high-quality news reports on which the public relies.”
Meltwater is a directly competing news service for many AP subscribers, including government agencies that use the AP wire to monitor the news. AP bears all of the extensive costs associated with creating its content, while Meltwater bears only the minimal costs of electronic distribution – thus permitting it to undercut AP with lower subscription rates through its infringing activities.
The UK Court of Appeal and a Norway court have already issued decisions holding that the content delivered by Meltwater requires a license under those countries’ governing copyright laws. But, in contrast to many other news outlets and news aggregators that deliver AP news reports to the public (including Yahoo News, Google News and AOL, which all have licenses for AP content), Meltwater does not. It refuses to license the content that it delivers to its customers.
“Meltwater free-rides on AP’s significant investments in gathering and reporting news,” said Laura Malone, AP acting general counsel. “In short, Meltwater earns substantial fees for redistributing premium news content, while bearing none of the costs associated with creating that content.”
AP’s lawsuit is not a general attack on news aggregators, stressed Malone. Nor does AP in any way seek to restrict linking or challenge the right to provide headlines and links to AP articles.
“Meltwater is not a typical news aggregator,” said Malone. Most notably, Meltwater is a closed system sold only to subscribers for a fee, and not a means of expanding public access.
Further, the complaint alleges that Meltwater provides lengthier and more systematic excerpts from AP stories than most news aggregators, particularly with regard to AP breaking news articles. Meltwater retains a vast archive of AP articles dating back to at least 2007, many of which are no longer publicly available on the Internet. Meltwater actively facilitates the storage of those and other articles in customer archives on the Meltwater system.
The publication of fast and accurate worldwide news coverage requires a substantial financial commitment. AP has bureaus in more than 100 countries and is the only news organization with reporters in every U.S. statehouse. AP journalists gain an intimate knowledge of their beats and sources, greatly enhancing the value of their reporting, the suit says.

About The APThe Associated Press is the essential global news network, delivering fast, unbiased news from every corner of the world to all media platforms and formats. Founded in 1846, AP today is the largest and most trusted source of independent news and information. On any given day, more than half the world's population sees news from AP. On the net: www.ap.org
For more information, contact:
Paul ColfordDirector, AP Media Relations212-621-1720"

Meltwater - AP score first victory in the US

Melwater, the subscription based news clip aggregator for corporate customers who want to monitor news coverage of their industries and themselves, has lost a case for copyright infringement brought by The Associated Press. The case, filed just over twelve months ago, concerned the unlicensed use of material from AP within Meltwater's services. AP said that Meltwater has built its business on the wilful exploitation and copying of the AP’s and other publishers’ news articles for profit.

In Manhattan U.S. District Court Judge Denise Cote granted AP's motion for summary judgment with one exception holding that  "AP has shown through undisputed evidence that Meltwater's copying is not protected by the fair use doctrine." Meltwater's application for summary judgment was dismissed. Judge Cote said "Through its use of AP content and refusal to pay a licensing fee, Meltwater has obtained an unfair commercial advantage in the marketplace and directly harmed the creator of expressive content protected by the Copyright Act".

The judge noted that whilst commercial Internet news clipping services like Meltwater perform an important function for their customers, that "does not outweigh the strong public interest in the enforcement of the copyright laws or justify allowing Meltwater to free ride on the costly news gathering and coverage work performed by other organizations. Moreover, permitting Meltwater to avoid paying licensing fees gives it an unwarranted advantage over its competitors who do pay licensing fees".

AP CEO Gary Pruitt said in a statement  "This ruling makes it crystal clear that Meltwater wrongly used news content from AP to create its own content, while paying none of the costs associated with creating original news content," 

Vowing to appeal, Meltwater CEO Jorn Lyseggen said in a statement “We’re disappointed by the court’s decision and we strongly disagree with it”  adding “We’re considering all of our options, but we look forward to having this decision reviewed by the Court of Appeals, which we are confident will see the case a different way.” The company also stated in its press release that it "believes the ruling misapplies the fair use doctrine and is at odds with a variety of prior decisions that have paved the way for today’s Internet.”

In July 2011 the United Kingdom  the Court of Appeal upheld the ruling of Mrs Justice Proudman that end-users of media monitoring service Meltwater required end-user licences to access and use search results consisting of the headline of each article which mentions the search term (which hyperlinks to the article), the opening words of that article and an 11-word extract showing the context in which the search term appears.

The Associated Press v Meltwater U.S. Holdings Inc, 12-cv-1087, U.S. District Court, Southern District of New York.

The Newspaper Licensing Agency Ltd & Others v Meltwater Holding BV & Others [2011] EWCA Civ 890)  

http://www.politico.com/blogs/media/2013/03/meltwater-vows-appeal-in-ap-copyright-suit-159930.html

http://the1709blog.blogspot.co.uk/2011/07/meltwater-never-mind-infopaq-court-of.html

http://www.meltwater.com/products/meltwater-news/

Meltwater: Copyright Tribunal ruling -- now for the other side of the coin

While I was digesting the media release on behalf of the Newspaper Licensing Agency (NLA) for an earlier post here, Meltwater Group and the PRCA (Public Relations Consultants Association) issued their own, quite upbeat release too. It reads, in relevant part:

"Today’s Copyright Tribunal ruling makes it clear that the UK’s copyright law is on a head-on collision with the average Internet user. Everyday acts such as searching for news and sharing it at work now require a license from the Newspaper Licensing Association (NLA). In a win for business, Meltwater Group and the PRCA (Public Relations Consultants Association) were able to convince the Copyright Tribunal to slash the NLA’s proposed license fees by 90 per cent. Sadly today’s verdict is only a partial victory for the UK Internet community. Going forward, it is clear that UK clients of online news monitoring services will need a license agreement with the NLA and pay copyright fees. This is also the case for commercial UK clients of any news monitoring vendor including Google News. During the proceedings, the NLA stated that it has been mandated by its owners and intends to pursue licensing of UK business users of Google News.

These UK court rulings make millions of UK citizens lawbreakers. According to the courts, sending an email to a work colleague with a news headline, browsing a free news service or sending a Tweet with news at work requires a licence from the publishers, without such licence they infringe copyright. UK copyright law needs an overhaul to make it compatible with the Internet. Without such modernization, millions of people will unintentionally break the law every day.

Today’s decision in the Copyright Tribunal is part of an on-going series of cases where Meltwater and the PRCA challenged the NLA on its high fees for reading freely available news. In the ruling, the Copyright Tribunal agreed with Meltwater and the PRCA's contention that the NLA's proposed licensing scheme was not reasonable and required amendment. Nine points were challenged by Meltwater and the Tribunal agreed with Meltwater on seven of them. By fighting this licensing scheme, the PRCA and Meltwater were successful in reducing the fees for all businesses totalling more than £100 million over the next three years. The savings for Meltwater clients alone are more than £24 million in the same period.

“The ability to browse the Internet without fear of infringing copyright has always been a fundamental Internet principle. Society is not served by these rulings in UK and it seems that this interpretation of the law fundamentally clashes with how millions of people use the Internet every day,” says Jorn Lyseggen, CEO of Meltwater. “Meltwater is a strong believer in copyright and a strong supporter of a sustainable, independent press. However, the UK needs a copyright law that allow its citizens to use the Internet without fear of unintentional infringement.”

Meltwater and the PRCA continue to advocate for a modern copyright law for the UK. Notwithstanding the Tribunal's decision, Meltwater and the PRCA are appealing aspects of the Court of Appeal's decision on web browsing to the UK Supreme Court scheduled for February 2013. Also encouraging are several recent decisions of the European Union Court of Justice that are consistent with Meltwater and the PRCA’s position. In addition to attention from the judiciary, Vince Cable, UK Business Secretary, recommended in August that the UK government should change these out-of-date copyright laws based on the recommendations of the Hargreaves Report: Digital Opportunity – A Review of Intellectual Property and Growth. The UK Intellectual Property Office estimated that changes to the law will bring £7.9 billion to the UK economy. With copyright rules that are friendly to both publishers and businesses, the UK economy will create a new layer of services that help publishers make more money and increase UK tax revenues. ...

Importantly, the ruling is unique to the UK and only impacts people reading and sharing news in that country. As recognised by the Copyright Tribunal, copyright is governed by national law and users of media monitoring services outside UK are not subject to NLA licensing fees today.

Meltwater and the PRCA have stood alone in challenging the NLA’s licensing scheme both in the courts, and in the Copyright Tribunal, on behalf of PR agencies, in-house PR teams and all other business users of the Internet. If unchallenged, the NLA’s scheme would have increased costs not only for Meltwater customers but also for all users of commercial media monitoring services, many of whom are PRCA members ...".

I have just heard from my blogging colleague Asim Singh that Associated Press is commencing proceedings against Meltwater in the United States -- so I think we can assume that this conflict has gone global.

Meltwater: no sign of a thaw in dispute with Times Online

Yesterday the Copyright Tribunal's decision and order in Meltwater Holding BV and other interested parties - NLA Ltd were posted on the Copyright Tribunal page of the Intellectual Property Office website (you can read it in full here). The Tribunal members were Lucy Connors, Philip Eve and Colin Birss QC.

According to paidContent yesterday:

"Public relations news monitor Meltwater has come out fighting - but not too hard - after ... it had been blocked from indexing News International’s Times Online.

It’s issued a 259-word statement in response that says… well, not much. The essential point: Meltwater is sticking to its guns and waiting for what it hopes will be an industry-standard ruling in its favour from the UK’s Copyright Tribunal, to which it took the Newspaper Licensing Agency’s (NLA) new online use license.

The sticking point: News International’s Times Online, here, is operating a similar principle to the NLA, of which it is a member - but it’s not operating the agency’s new licenses; it’s acting unilaterally…"...”

The blocking has been effected by updating Times Online's robots.txt file to block Meltwater, along with NewsNow, which was previously blocked.

The Meltwater statement reads as follows:

"Earlier this week, Times Online, published by News International, took the step of blocking Meltwater from indexing its website. We find this move both surprising and disappointing as Meltwater has sought a ruling by the UK Copyright Tribunal to provide clarity on current UK copyright law. Yet, despite the fact that the Tribunal is still months away from reaching a decision, News International has chosen not to wait for a judgment, but to pursue its own course of action unilaterally.

Meltwater acknowledges that there are different interpretations of the current UK copyright law today. However, we firmly believe that our services do not infringe upon anyone’s copyright because our services do not keep nor provide our clients with copyrighted content. To create clarity on this issue, Meltwater has brought the NLA’s (Newspaper Licensing Authority) proposed licensing scheme for online news to the UK copyright tribunal (Meltwater press release). Meltwater believes that the entire industry will benefit from a clear ruling on this complex issue, which is so important for all players in the online media industry. The Copyright Tribunal recently rejected the NLA’s claim that Meltwater was not entitled to have its case heard.

Times Online’s recent action is just the latest development in the ongoing copyright discussions in the UK market, a discussion that is far from over. Meltwater continues to serve the needs of its customers and we are reviewing all the options available to us – including the relevant technical and legal considerations – to ensure we continue serving our clients long into the future".

In brief, the Tribunal has upheld Meltwater's right to challenge Times Online's Web Database Licence/Web End User Licence set-up: Meltwater has the credentials to make its application and the Tribunal has jurisdiction to hear it. The Tribunal has also set a timetable for hearing the dispute. The main diary dates are June 2009 (case management), October 2009 (pre-trial hearing) and 7 February 2011, where a hearing of between 5 and 7 days' duration is expected.

This one will run and run ...

Copyright Tribunal's final decision in Meltwater now available

As readers of this Blog will remember, last February the Copyright Tribunal published its interim decision in the fascinating case of Meltwater Holding v The Newspaper Licensing Agency (see 1709 Blog's coverage here and here).

Now, the Tribunal has issued its final decision.

Controversy arose out of a new pair of licences promoted by NLA in 2010, called the Web Database Licence ("WDL”) and Web End Users Licence (“WEUL”). The WDL/WEUL relate to the particular type of media monitoring activity carried out by Meltwater. 

The NLA contended that the nature of Meltwater’s business meant that both it and its customers needed to take out WDL and WEUL agreements. Meltwater’s position was that it was prepared to enter into the WDL and undertook to do so, but that its customers did not have to enter into the WEUL at all. This was because Meltwater’s customers, by receiving the Meltwater service, did not commit any of the acts restricted by copyright and therefore did not need a licence. As clarified by the Tribunal in its interim decision, 

Surely there is more expectation about the 
Supreme Court's Meltwater ruling
than the release of The Dark Knight Rises ...
Definitely.

In a nutshell Meltwater’s point was that the material sent to customers was too insubstantial to be a copyright work or to be a substantial part of the original news article. Copying the material would not infringe (if there was no licence) and so copying the material was not a restricted act.

The findings of the Tribunal were however that 

end users of a headline only service should enter into the WEUL just like end users of the normal Meltwater News service of headlines plus extracts and should be subject to the same tariff rates.

This said, the Tribunal agreed with Meltwater and the PRCA's contention that the NLA's proposed licensing scheme was not reasonable and required amendment.

As reported by journalism.co.uk, since the interim decision of the Copyright Tribunal, the parties have worked together in close consultation to reach an agreement on the finer details of the licensing payment model, with a revised fixed price agreed upon.

Now, the Tribunal has accepted the terms proposed by the parties as "reasonable".

Some copyright enthusiasts are already camping
outside the Supreme Court,
waiting for the start of the Meltwater's hearings

Compared to the first licensing scheme, the agreement now includes - inter alia - reduced rates for the very smallest users (low number of employees) and, in parallel to this, increased rates for the users with high numbers of employees.

Co-founder of the Meltwater Group Jens-Petter Glittenberg explained that the NLA and Meltwater are now committed to ensuring that UK end users of such monitoring services are licensed quickly, fairly and efficiently. 

So far so good -- but fans of this saga will have to keep holding their breath for a year or so. Meltwater and PRCA appealed aspects of the Court of Appeal's decision on web browsing to the Supreme Court (see here). Release of the sequel is expected in early 2013.

How originality is reinventing itself

On Friday Mrs Justice Proudman handed down her judgment in NLA v Meltwater and PRCA, [2010] EWHC 3099 (Ch), a judgment that examines the way European law is transforming English copyright law and the effectiveness of website terms in controlling how content is accessed and used.

Meltwater provides an online media monitoring service to business customers. Customers choose search terms and Meltwater sends them ‘Meltwater News’ – reports of articles containing those search terms. Meltwater News includes 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.

The Newspaper Licensing Agency has recently started two licensing schemes, one for media monitoring organizations and the other for end users of those monitoring services. The Agency and several newspapers have sued Meltwater and the professional association for PR companies (PRCA). The issue for the court in this judgment was whether Meltwater’s end users, such as PRs, should require a licence from NLA – would they be infringing copyright if they did not have one? The conclusion reached was that without a licence, end users are infringing the publishers’ copyright.

Copyright infringement

The starting point was that end users are making a copy of Meltwater News on their computers. Were the headlines and extracts in Meltwater News infringing copyright? Headlines, Proudman J found, are sometimes independent literary works and, in that case, copying them is automatically copyright infringement. The text extracts, on the basis of the ECJ’s Infopaq judgment, are theoretically capable of being substantial enough for the purposes of s. 16(3) CDPA and, in practice, in many cases the text extracts did contain elements that are the expression of the intellectual creation of the author. Although Infopaq had changed the test for the part of a work from substantiality to originality, this made little difference in the present case.

European law has challenged the traditional analysis of whether copyright in parts of works has been infringed in two significant ways. Firstly, the CDPA says copyright is infringed when a ‘substantial part’ is copied. The Information Society Directive just says you need to copy ‘a part’. However, Infopaq says that the part must be the ‘expression of the intellectual creation of the author’ – which arguably implies a higher level of originality than has previously been required under English law. Proudman J’s argument becomes a little hard to follow at this point: it was wrong in principle for the court to assess if the extract was itself novel or artistically worthwhile but a part must ‘demonstrate the stamp of individuality reflective of the creation of the author’. This latter statement does seem to raise the bar for originality.

One point that wasn’t touched on is that the InfoSoc Directive provides that sanctions and remedies in respect of infringements should be appropriate and proportionate. Could proportionality provide an alternative mechanism to substantiality to avoid overreacting to small infringements?

Database copyight

End users were not infringing newspapers’ s. 3 CDPA database right. Although newspapers’ websites are ‘databases’ (collections of independent works, systematically arranged and individually accessible), Meltwater’s end users are copying the articles, not their arrangement within the database. (Compare and contrast with Football Dataco v Brittens Pools, currently before the Court of Appeal.)

Was it an infringement of copyright for end users to click Meltwater’s hyperlinks through to the publishers’ sites?

The judge thought it was infringement, more likely than not. The terms of publishers’ sites sometimes say customers of commercial monitoring services require a licence to use the content and they always say they cannot be used for commercial purposes. Nevertheless, the judge was somewhat unimpressed that the claimants were here complaining about users visiting their sites while elsewhere they were complaining that Meltwater’s customers didn’t click through, so depriving the sites of traffic.

Exceptions

End users’ uses failed to fall within any copyright exception: temporary copies, criticism/review or news reporting. Article 10 of the Berne Convention did not persuade Proudman J to take a relaxed approach to quotation: ‘Berne cannot displace the express provisions of the InfoSoc Directive or override what was said by the ECJ.’ She didn’t buy the defendants’ argument that Meltwater benefited from the criticism or review exception because it was letting end users decide whether material was likely to be of interest. And it was tortuous to say that copying to spot mentions of clients in the press fell within the news-reporting exception. In any case, even if exceptions applied, there was no fair dealing and no author acknowledgment.

Olso court gives Meltwater an icy reception

From Stine Helén Pettersen (Wiersholm, Mellbye & Bech, advokatfirma AS, Oslo, Norway) comes news of a really interesting copyright case decided by the City Court of Oslo which involved the use of extracts from online news articles in online news monitoring services. Writes Stine:

"This case turned on the requirement of consent for online news monitoring services. Mediebedriftenes Klareringstjeneste (a collecting society for copyright owners whose articles are used in news monitoring services) is owned by a trade organization called Mediebedriftenes Landsforening. Its function is to secure clearance for the digital copying of its members’ online newspapers. Mediebedriftenes Klareringstjeneste has for several years had agreements with companies which operate commercial, online-based news monitoring services in Norway.

One of the largest news monitors, Meltwater News AS, had an agreement with Klareringstjenesten for four years, before terminating the agreement. Meltwater was of the opinion that its use of the textual content of online newspapers did not actually generate a legal obligation to obtain clearance. The reason for this, in Meltwater’s view, was that such actions are not covered by the exclusive right of the copyright owner.

Meltwater then sued, seeking a declaration that Klareringstjenesten had no right to demand remuneration from Meltwater. Klareringstjenesten filed a counterclaim, seeking compensation for Meltwater’s use of the rights belonging to the online newspapers. The case was tried before the Oslo City Court on 11-13 March 2009 and the case was decided on 25 May 2009. Klareringstjenesten successfully resisted the declaratory claim and was awarded compensation of NOK 3,750,000 (c. £370,000), in addition to receiving its legal costs.

The judgment deals with fundamental questions regarding the legality of using copyright material published online.

The court agreed with Klareringstjenesten, stating that Meltwater’s indexing of copyright material constituted a reproduction of copyright works. Meltwater had argued that the Norwegian Copyright Act’s exception in favour of transient reproduction applied here and that Meltwater’s service therefore must be considered legal. However, since the court was not offered any evidence that the reproduction was transient it did not decide upon this matter. The court however found that the indexing/index was in itself an infringement of copyright. Other matters – also of fundamental significance, such as database protection - were raised by the parties, but not ruled upon. These were among others, as in Google v Copiepresse, reproduction and the quotation right.

Meltwater also argued that anyone who publishes copyright works online must be considered to have given tacit consent to its use. Based on the copyright notices provided on the online newspapers websites, Klareringstjenesten’s requests to Meltwater for remuneration and other circumstances, the court decided that there was more of a “explicit denial” than a tacit consent.

The judgment does not entail prohibition of use of online material, but establishes as a condition that certain forms of use require clearance – and actual payment if the right holder requires this. This judgment is the first case in Scandinavia (and in Europe?) to deals with the question whether indexing requires the consent of the copyright owner. The case has now been appealed to the district court and is expected to be heard during the fall".

An English translation of the judgment can be read here, along with an English version of the Norwegian Copyright Act. Thanks, Stine, for your efforts which are hugely appreciated by 1709 Blog readers.

Licences for links: Meltwater and the NLA

An interested and concerned reader has forwarded to me an email from Meltwater, a Norwegian-based business which now provides news and analysis services in more than 110 countries. The email reads as follows:

"Dear Meltwater Customer,

You may or may not be aware that the Newspaper Licensing Agency (NLA) recently decided to extend its hardcopy licensing regime to cover links to newspaper website content. The NLA believes that you (our customer) need a license from the NLA in order to click on the links you receive from the Meltwater News Service. Meltwater strongly disagrees with this and has announced today that we are taking the NLA to the UK Copyright Tribunal to challenge what we consider to be a "link tax" without legal basis.

The NLA, originally formed in 1996, was created to license and collect revenue from the copying and clipping of print media. Now the agency is attempting to enforce licensing agreements on Internet links. The NLA is targeting both companies providing media monitoring services and the customers subscribing to such services.

Meltwater is pursuing this legal action after the NLA threatened to sue any online media monitoring company who fails to sign up to its new content licensing agreement by January 1. 2010. We have been in good faith discussions with the NLA for several months now, but have been unable to come to an agreement. While Meltwater respects the copyright of the NLA's members, the licensing scheme seeks to control the receipt of links to freely published online content, even though such rights are not granted to copyright owners under UK copyright law. Therefore, Meltwater has decided to take this matter to the UK Copyright Tribunal because we believe that the NLA's licensing scheme has no basis in UK copyright law.

It may take 9 to 12 months for the Tribunal to come to its decision. In this period, Meltwater will continue to serve you with links to relevant news stories and we will continue to do our very best to meet your needs. ..."

Meltwater's email also contains an attachment with FAQs relating to this dispute. The NLA website's Guidance for Clients in turn contains the following advice:

"Soft Copy/Electronic Press Cuttings

If your client receives an electronic press clipping service from a press cuttings agency either via a web portal, or if you gain access to relevant articles via web links and wish to give your clients access to their cuttings via this means, then you will need to ensure you have opted for the digital extension to your NLA licence.

Agencies must confirm to the NLA the number of email addresses they wish to supply with cuttings at each client. Clients are allowed to view the cuttings on screen without the need to be licensed. If clients wish to print off copies, or foward emails they will need their own NLA licence".

Further information is provided in the "FrontLine Survival Guide to Copyright for PR Professionals" here.

While readers are left to make up their own minds, the 1709 Blog can add a few short observations and comments: (i) if neither the provision of links to customers nor their use by customers constitute acts which are restricted by copyright, there is nothing to license; (ii) it appears from the above that, while Meltwater states that it is the customers who will require a licence, the NLA states that clients can view cuttings on-screen without the need for a licence and it is the agency that needs the licence; (iii) this is the sort of scenario in which the absence of generally-agreed international norms as to what is permitted (or not) on the internet is bound to cause persistent trouble. Links to copyright-protected material are no longer a new and unfamiliar phenomenon; the time has surely come to reach a clear and consistent consensus, so that businesses can invest in the creation, sale and dissemination of content in the knowledge that their investment either will, or will not, be protected by copyright law, by contractual licence, by unfair competition principles or by anything else.

Why the Meltwater case won't break the internet

The following piece is a guest post by Simon Clark (Head of Intellectual Property, Berwin Leighton Paisner LLP) in which he outlines his view on the implications (or lack of them) for internet browsing of the much-discussed litigation before the courts of England and Wales in NLA v Meltwater.  Whether you agree with Simon or whether your take on this litigation is quite different, do let us know.

Why the Meltwater case will not break the internet 

You may have read some recent discussion on this blog regarding the effects of the Newspaper Licensing Agency’s litigation with Meltwater and the PRCA on “linking” and “browsing”. 

One of the often repeated claims is that the Court of Appeal’s decision has been to make all browsing on the internet illegal. In this post I’ll explain why this is a misunderstanding – both of the nature of the case and the safeguards in place that would make such a result impossible.

The background to various proceedings between the NLA and Meltwater and the PRCA are given in more detail here.  But, in brief, the litigation had little to do with either “linking” or “browsing” when both the High Court and the Court of Appeal made their rulings in favour of the NLA. 

In fact, the litigation only relates to the extent to which Meltwater’s customers and other end users of paid-for online press monitoring services require a copyright licence. The Courts found in favour of the NLA, but the PRCA appealed a single issue to the Supreme Court which they say has a direct effect on the legality of browsing. This is known as the “temporary copying” exception. 

The reason it is called an exception is because, under current copyright law, any original article, plus some extracts of an article and some headlines appearing on newspaper websites will be protected by copyright. However, since temporary copies as well as permanent copies can infringe copyright, calling the exception in issue the “temporary copying” exception is somewhat misleading. In fact, the exception only applies to certain types of temporary copies and the European Courts have said that it must be interpreted narrowly.     

Most acts of browsing are either authorised or fall within an existing exception 

If internet users access a newspaper website on their computers to read an article, they make a copy of the article in the memory of their computers, and a copy appears on their computer screens. Does this mean that every internet user that accesses an article on a website infringes copyright? Of course not. There will be no infringement of copyright if the otherwise infringing act falls within one of the exceptions, or if the owner has authorised the act. 

It is not an infringement of copyright if the acts are undertaken for “the purposes of research for a non-commercial purpose” or for “the purposes of private study”. Many internet users’ browsing activities will fall within these exceptions. 

Most websites are designed to be accessed by members of the public. The operators of those websites add content to their website with the very intention of wanting people to read it. They have given an implied, free-of-charge copyright licence to the reader to make a copy of their content on the reader’s computer screen so that they can view it.  As such, most acts of browsing will be entirely legal and will not infringe copyright. 

So what about for-profit media monitoring services like Meltwater? 

Newspaper publishers are different to many other websites as they have only given an express licence (made clear in their terms and conditions) to members of the public to reproduce the articles on their computer screens so that they can read them for non-commercial purposes.

The newspapers have made it very clear (including expressly in their terms and conditions, but also through the litigation) that no such licence is granted to a client of a paid-for media monitoring agency such as Meltwater which is using the newspapers’ content for commercial purposes. Despite this, Meltwater and the PRCA argue that the copies of the articles made on the end user’s computer screen and in their computer’s memory fall within the “temporary copying” exception.

Accordingly, in February 2013 the Supreme Court will have to decide whether the Court of Appeal was right to conclude that the copy of the newspaper article which appears on the user’s screen does not fall within the temporary copying exception.  The screen copy is the result of users paying for a media monitoring service such as Meltwater’s, and acts as a substitute for the hard copy article which users would otherwise have had to have paid for.  The PRCA argues that it falls within the exception, because the screen copy is temporary and appears as part of the same technical process involved with any act of browsing.  The NLA’s position is that it does not, because it is far removed from the non-profit making temporary copies that the exception was intended to cover.  It is the final copy produced at the end of the technological process that the end user has paid to receive, rather than an incidental copy.  

So in summary:

1.     Copyright in an article does not simply disappear as soon the article is put on the internet;

2.     It is perfectly permissible for a copyright owner to grant a copyright licence to allow some types of use (e.g. non-commercial) but not others (e.g. commercial);

3.     Most websites grant an express or implied copyright licence which permits acts of browsing;

4.     Browsing a website for private study and non-commercial research is already expressly permitted by existing copyright law;

5.     Linking to articles for the purposes of criticism or review or for reporting current events may well fall within one of the other specific exceptions;

This is a summary of a longer article which you can access here.

Breaking the internet: a response

The 1709 Blog is committed to furthering the copyright debate on all matters of public interest and is therefore pleased to host this response by James Mackenzie (Commercial Director, Cutbot Ltd) to Simon Clark's recent comments on the dispute between Meltwater and the Newspaper Licensing Agency (NLA):

Last week Simon Clark from Berwin Leighton Paisner argued here that the infamous High Court and Court of Appeal rulings on Meltwater v NLA don't "break the internet", as others have claimed. There were two odd omissions from his piece: first, an acknowledgement that he helped to represent the NLA, and second, any direct quotes from the courts' judgments. I should therefore explain that I am a founder of Cutbot, a new online media monitoring firm. Nevertheless, my objections to his position and to the courts' rulings are to the principle more than to the commercial consequences. Let's start by disposing of one of Mr Clark's red herrings. He claims that the rulings rested in part on the terms and conditions posted as public notices (in the Hitchhiker's Guide sense) on publishers' websites. Entirely untrue. To quote the Court of Appeal (§49):

The purpose of these proceedings is to ascertain the rights of the parties in relation to copyright, not some independent contractual right of a publisher.

He also sets out a straw man argument, which he claims is regularly made, that the Court of Appeal has made "all browsing on the internet illegal". No, it has not. But nor does the ruling only affect paid-for monitoring services like Meltwater or Cutbot. To quote from the High Court (this is the bulk of §103):

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. … [I]t 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.

The Court of Appeal, summarising the High Court's ruling, explained that (from §5):

[T]he copies made by the end-user's computer of … the article itself when clicking on the link indicated by Meltwater News are and each of them is, prima facie, an infringement of the Publishers' copyright.

Remember these are not copies in the sense of republication elsewhere for any purpose, commercial or otherwise. These prima facie infringements occur when a user clicks on a link in an email and their computer asks a publisher's server for a copy of a legitimate article, as posted on the publisher's site. The publisher's server freely provides the HTML and associated code required to view the page. Receiving this information is, the courts argue, prima facie an infringement of copyright. Furthermore, just viewing an email containing headlines and links to legitimate content will infringe, (High Court, §104):

An End User who uses the share function to forward a headline Link (and, a fortiori, 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.

The scope of the courts' rulings is actually this. All browsing of copyright material is a potential infringement unless a defence of non-commercial or private use applies. So too is merely referring to a work by its title (such as the headline). Simply receiving an email with links can be infringing – even if you have no contractual relationship with any media monitoring firm. The fact that the NLA have only hit media monitoring firms and our clients should not reassure anyone else who visits the Guardian or Telegraph websites at work. You should also worry that they require a licence from a small UK startup like ours, with a turnover of below £30k, but have exempted Google, whose UK turnover alone is nearly £400m. The Google News site is, of course, free to the end user, but Google is hardly a charity. As the two pigs fail to notice in the context of Facebook, we're not the customers, we're the product. But Google News is a sideshow compared to Google's main operation. They aim to index every public page with copyright material, and are not charged for the privilege. We index a small subset of those pages and are threatened with a charge equivalent to a third of our turnover (Meltwater are asked to pay 0.14% of theirs, incidentally). The upshot is that any search engine could, if the publishers wanted, be charged or excluded. They gave up in Belgium, but that's hardly reassuring either. Clearly newspaper articles are works for copyright purposes, which is why we do not show clients any part of the body of the article, unlike Meltwater. Headlines are titles, though, just like titles for any other work. Whether or not they are copyright, they are also the only clear way to refer to a work. Even if one agrees that headlines can be copyright, that should not necessarily imply that using them to reference articles constitutes infringement. That's an essential part of the democratic flow of information, as protected by Article 10 of the ECHR. In fact, the protocols on which the internet is built include inherent implied licences. We intend to challenge some of the consequences of these confused rulings: by negotiation with the NLA if possible, or through the Copyright Tribunal if not. For example, the NLA, acting as a collecting society, charge us and our clients a licence fee, and obtain our clients' contact details, while running a partially competitive service called eClips. It's hard to imagine a clearer prima facie breach of competition law, facilitated in this case by unclear legislation and a collecting society determined to see what Professor Lionel Bently calls "innocent acts" defined as infringements. Other problems caused here may be resolved in the Supreme Court, especially given developments in EU law (notably Infopaq II and FAPL). Some, I suspect, will have to be legislated on if Ministers don't want a uniquely heavy-handed copyright regime to stifle the sorts of legitimate businesses that thrive elsewhere, and if they don't want to hand UK markets over to our unhindered competition in the US or elsewhere in the EU.

NLA v Meltwater: temporary copies issue referred to the CJEU

Readers will remember that both the High Court and the Court of Appeal held, in NLA v Meltwater, that users of Meltwater's news aggregation service need a licence from the NLA in order to receive and read Meltwater news snippets. The specific question of whether the copies made on users' computer screens and hard drives when they access and read content online are temporary for the purposes of Article 5.1 of the InfoSoc Directive was appealed to the Supreme Court.

There has been some heated discussion on this blog as to whether the case would or would not break the internet, and several academics locked horns to debate whether the case meant the end of browsing. This is a topic on which everyone has an opinion, because the question of whether it is legal to read material online is an important one. So important that the Supreme Court has today held that it will refer the question of temporary copies to the CJEU.

The Supreme Court's decision contains a thorough analysis of the temporary copies exception and previous CJEU case law, and sets out the conclusions that it reaches on the effect of the Information Society Directive as the CJEU has interpreted and applied it to date.

The decision notes that if it is an infringement merely to view copyright material, without downloading or printing out, then those who browse the internet are likely unintentionally to incur civil liability, at least in principle, by merely coming upon a web-page containing copyright material in the course of browsing.

The Supreme Court recognises that "the issue has a transnational dimension and that the application of copyright law to internet use has important implications for many millions of people across the EU making use of what has become a basic technical facility. These considerations make it desirable that any decision on the point should be referred to the Court of Justice for a preliminary ruling, so that the critical point may be resolved in a manner which will apply uniformly across the European Union."

On that basis the Supreme Court will refer to the CJEU the question whether the requirements of article 5.1 of the Information Society Directive that acts of reproduction should be (i) temporary, (ii) transient or incidental and (iii) an integral and essential part of the technological process, are satisfied by the technical features described at paragraphs 2 and 31-32 of the Supreme Court judgment, having regard in particular to the fact that a copy of protected material may in the ordinary course of internet usage remain in the cache for a period of time after the browsing session which has generated that copy is completed until it is overlaid by other material, and a screen copy will remain on screen until the browsing session is terminated by the user.

The specific questions to be referred are yet to be decided.

 

Disclaimer: Baker & McKenzie acts for Meltwater and PRCA in this case.

Browsing and linking: should the government get involved?

Is it illegal to browse the internet? As counterintuitive as it may seem the answer is that yes, sometimes it is, even if you are browsing content which is entirely legal. Unsurprisingly this is a hot topic, currently being considered both by the government and by the courts, as well as by consumers.

Out-Law.com recently reported that James Mackenzie, commercial director of the media monitoring agency Cutbot, publicly said that businesses and internet users could both suffer if the government waits for the courts to interpret whether browsing and linking are lawful acts. He said that "If Parliament fails to act, ministers risk seeing the innocent browsing of the web criminalised and legitimate UK businesses being stifled."

The debate stems from the NLA v Meltwater litigation which has seen the High Court and the Court of Appeal consider whether headlines and extracts from articles can be protected by copyright. Both courts found that they can, however Meltwater and the Public Relations Consultants Association have referred the question of whether temporary copies of the headlines or extracts, made on users' computers (on their screens or their hard drives) when browsing the internet constitute temporary copies for the purpose of s.28A CDPA or Art. 5 InfoSoc Directive.

In the meantime the NLA is enforcing licences on both media monitoring organisations and their users. The licence fees have been greatly reduced by the Copyright Tribunal (as reported here), but the licences remain unpopular, as evidenced by Cutbot's blogpost "we object to the newspaper licensing agency's terms", which you can read here.

So what's next? Will the government intervene?

The issue of whether browsing and linking should explicitly be made legal was recently considered by the House of Commons in a public committee meeting on the Enterprise and Regulatory Reform Bill. A proposed new section was debated:

"30A Sharing and viewing on the internet

Where work is made available to the public at a particular web address with the permission of the owner of the copyright in that work, copyright shall not be infringed by -

(a) any circulation of that web address, or of its title, or of another web address that redirects to that web address;

(b) the downloading of any data required to display that work at that address, and any subsequent processing of that data, including processing for display, provided that it does not result in any publication elsewhere of the work or an adaptation of the work.".

Labour MP Fiona O'Donnell said that:

"It is evident that the law has not caught up with new media and the worldwide web, and the Government must respond."

She went on to quote Professor Lionel Bently, of Cambridge University who has said that

"There is something fundamentally wrong with a legal regime which renders the innocent acts of many millions of citizens illegal."

Business Minister Norman Lamb has previously said  that the copyright licensing system is behind the times, and that it needs to be modernised to become fit for the 21st century. He does not however support O'Donnell's argument, saying that links have been dealt with in the Meltwater case and that it is necessary to await the outcome of the case.

The debate continued, with MPs discussing amongst other things hypothetical extracts from the novel "50 Shades of Grey", however the outcome was 11:6 against the amendment.

Lamb said that:

"Ultimately, the matter is for the courts to determine. As the law is evolving and practice is evolving, as we use the internet more and more, to a degree, one has to wait for judicial decisions on the basis of European law to determine whether any particular act is lawful. Ultimately, they are decisions for the courts".

What do you think? Given that the Meltwater case will not be heard by the Supreme Court until February 2013, should the government intervene or can we afford to wait for the court's decision?

Disclaimer: Baker & McKenzie, and this blogger, represent Meltwater and the Public Relations Consultants Association.

Meltwater: Copyright Tribunal ruling out today

The 1709 Blog has received this afternoon two items of interest to those who have been following the Meltwater saga (see eg earlier posts here and here).  The first is a link to the interim decision of the United Kingdom's Copyright Tribunal, which was released today.  The second is an unsurprisingly upbeat media release from law firm Berwin Leighton Paisner LLP, which had the good fortune to be instructed by the winning party, the Newspaper Licensing Agency (the NLA). According to the media release,

"In response to the Copyright Tribunal’s interim decision in the case of Meltwater Holding v the Newspaper Licensing Agency, David Pugh, Managing Director of the Newspaper Licensing Agency, said:

“We welcome today’s decision which follows two court cases [Chancery Division here; Court of Appeal here] confirming the legality of licensing [it's not licensing per se that is at stake -- that has never been in question. Rather, it's one specific situation in which the NLA maintained that a licence was necessary]. We are pleased that the Copyright Tribunal has upheld the principle and structure of our online licensing scheme, and confirmed that Meltwater is subject to the same requirements as Media Monitoring Organisations.  

The judgment provides a measured, equitable regime that will ensure stability for both publishers and end-users alike: our customers will benefit from a transparent licensing structure and newspapers can be sure of a fair reward for their content.  

We think that all concerned will welcome the certainty that the Tribunal has provided, and we look forward to working with the newspapers, MMOs and our customers to implement the licence as quickly and as smoothly as possible”

Simon Clark, Head of Intellectual Property at Berwin Leighton Paisner, who led the team representing the NLA and the newspapers, added: "This is an interim decision - the parties now have two months in which to try to agree a few outstanding issues, after which the Tribunal will issue its final decision setting out the exact wording of the two online licences".

Today's ruling, which runs to over 260 paragraphs plus appendices, will take a while to digest. Meanwhile, the dispute is still to receive the benefit of an analysis from the Supreme Court.  Nor -- and this may be a possibility given that the courts in Slovakia have approached a similar dispute in a very different way -- has there been a reference to the Court of Justice of the European Union.

Copyright Debate: Is NLA v Meltwater the end of browsing?

Making a debating point --
or hailing a London taxi ...?

It all seems a bit sudden, but in not much more than two weeks from now there will be a free-to-attend copyright debate on the motion "Is NLA v Meltwater the end of browsing?"  The date is Tuesday 15 November 2011 and the two sides will lock horns from 5.15pm to 7.00 pm. The venue is the London office of Baker & McKenzie LLP.

1709 Blog team member Jeremy will be taking the chair. Speaking for the motion are Professor Andrew Murray (London School of Economics) and Dr Neil J. Wilkof (head of Intellectual Property, Herzog Fox & Neeman).  Ranged against them are Dominic Young (blogger and former director and chairman of the Newspaper Licensing Association) and Justine Pila (lecturer at Oxford University).

Why should you attend this debate? As the hosts explain:

The Court of Appeal for England and Wales recently upheld the High Court's judgment that users of commercial news aggregation services infringe copyright when they click on links to articles (The Newspaper Licensing Agency Ltd and others v Meltwater Holding BV and others [2011] EWCA Civ 890, 27 July 2011, on which see earlier 1709 Blog posts here, here and here). As a result anyone who clicks on an internet link creates an infringing copy of the webpage on their computer screen unless they have a licence. 

The Supreme Court's decision as to whether they will accept an appeal from this decision is eagerly awaited, but in the meantime the question that arises is: Is NLA v Meltwater the end of browsing as we know it?

To attend, email Naomi Harrison here and hope there's still room since space is limited.

The debate is CPD-accredited for 1 hour and 30 minutes - Solicitors Regulation Authority Authorisation 009/BAMC

Influence and the Copyright Tribunal

In a 14-page ruling in Meltwater Holding BV v The Newspaper Licensing Agency Ltd, CT114/09, 10 June 2010, which you can read in full here, the UK's Copyright Tribunal has confirmed that leading barrister Henry Carr QC -- one of the Tribunal's two deputy chairmen -- can represent a client in proceedings before the three-person Tribunal (the chairman is a lawyer; the other members are laymen). The proceedings in question are part of the big battle between contentious news monitoring service Meltwater Holding BV, which is among other things seeking improved terms for a new web database licence offered by the National Licensing Agency Ltd (NLA).

Obviously, if he was representing Meltwater, Carr wouldn't be able to chair the Tribunal at the same time. Accordingly the hearing of Meltwater's application was scheduled to take place before the other deputy chairman, Colin Birss QC. But might the Tribunal's lay members be likely to be affected by the authority of, and pay undue deference to, Henry Carr's submissions of law?

Presumably influenced by Tribunal chairman Judge Michael Fysh QC -- though, we imagine, not unduly so -- the Tribunal concluded that the NLA had not shown sufficiently that there was any real possibility of unconscious bias arising in the lay member's minds. Certainly there was not enough to lead to a real perception of possible bias to the fair-minded and informed observer. Crucial in this decision was the fact that Henry Carr had not actually sat together with the two lay members (Lucy Connors and Philip Eve) whose turn it was to sit with Colin Birss.

You can check out the full complement of Copyright Tribunal members here.

Post Meltwater musings

The ramifications of Mrs Justice Proudman’s decision in Meltwater continue to niggle away in my mind and I noticed that the London Metro’s headline yesterday (pub: Associated Newspapers) was “Anarchy in the UK”, the title of the infamous sound recording and song, written by Messrs Paul Cook, Steve Jones, John Lydon and Glen Matlock in 1976. The recorded song formed the A side of the Sex Pistol’s debut vinyl release in the UK. Now IF copyright can subsist in a headline and a headline can be an independent literary work ....... and Meltwater tells us it can, then what if that headline itself is copied – here from a song title? Surely the logical conclusion is that the owners of the ‘title’ of song should have the right to protect their work in turn, independently of the lyrics of that the song ...... if it is worth copying, isn’t it worth protecting?

I also noticed the news that 60 artists including Mr Hudson, Guillemots, UNKLE, The Big Pink, The Kooks, Enter Shikari, Coldcut, Orbital, Heaven 17, Jon McClure, Suggs, Gallows and Pendulum have recorded two versions if John Cage’s famous ‘silent’ composition, '4'33"', as part of the Cage Against The Machine project. Billy Bragg and Imogen heap even "rang in" their contributions from mobiles! The news reminded me of a bizarre copyright story from 2002 involving the same work. The composition 4' 33", is credited to avant garde musician and songwriter John Cage (1912-1992) and described thus “For tacet (any instrument or combination of instruments). 4'33'. 20th Century. Performance notes. Composed 1952. 2 pages. Duration 4 minutes and 33 seconds. Published by Edition Peters (PE.P06777). ISBN M-3007-4483-4. With performance notes. 20th Century ...... silent piece for any combination of instruments”. You can purchase the sheet music for the princely sum of $5.95 here http://www.sheetmusicplus.com/title/4-33/1008430.

In July 2002 British composer and recording artist Mike Batt (of ‘The Wombles’ fame) found himself the subject of a threat of copyright infringement action for including the recording "A One Minute Silence," on an album for his classical rock band The Planets. He was accused of copying the song it from the work by Cage. Remarkably Batt settled the matter out of court with the BBC reporting that Batt paid an undisclosed six-figure sum to the John Cage Trust, telling the Press Association at the time: "This has been, albeit a gentlemanly dispute, a most serious matter and I am pleased that Cage's publishers have finally been persuaded that their case was, to say the least, optimistic” adding "We are, however, making this gesture of a payment to the John Cage Trust in recognition of my own personal respect for John Cage and in recognition of his brave and sometimes outrageous approach to artistic experimentation in music." Batt credited "A One Minute Silence" to "Batt/Cage". At the time lawyer Duncan Lamont told BBC Radio 4’s Front Row the question was "Is it a work?" saying "Has it been written down, is it a literary, artistic or dramatic work? The argument will be there is no work because there are no notes." A good a starting point as any, but I wondered if 1709 Blog readers had any illuminating thoughts they might care to share on this case - or indeed on my “anarchy” musings?

Newspaper Licensing Agency Ltd and others v Meltwater Holding BV and other companies [2010] EWHC 3099 (Ch)
http://ipkitten.blogspot.com/2010/12/tip-of-iceberg-media-monitoring-and.html
http://news.bbc.co.uk/1/hi/entertainment/2133426.stm
http://edition.cnn.com/2002/SHOWBIZ/Music/09/23/uk.silence/

Charles Swan (Swan Turton) had the same musings - and emailed me. Charles has written an interesting piece in the context of advertising slogans. You can see his bulletin on the subject here: http://www.swanturton.com/ebulletins/archive/CopyrightInAdvertisingSlogans.aspx