Tuesday 4 August 2009

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.

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