Sunday 28 November 2010

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.


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.

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