Copyright & meltdown for media monitoring services users

Dear reader

2010 is ending on a positive note for copyright and the newspaper industry, although there's still muchy to do to achieve 'one click transparency' in communicating licensing terms.

The good news came in the recent High Court decision in November in a case brought by the Newspaper LIcensing Agency (NLA) against the media monitoring company Meltwater and Public Relations Consultants Association (PRCA), representing PR companies who use the Meltwater News service (End Users).

Meltwater scrapes, indexes and aggregates newspapers' web content and provides End Users access to a hyperlink, the headline and an extract from each article in which the End User's pre-defined search terms appear (typically, where the article mentions one of their clients). The total text is up to 256 characters, comprising the headline, opening text after the headline and the extract from the article showing the context in which the search time appears.

The point the Court had to decide was whether PRCA and End Users needed a 'Web End User Licence' (WEUL) from the NLA to lawfully receive and use the Meltwater service.

As Meltwater only made headlines and article extracts available (not the whole article), the case turned on two issues: (i) could a headline qualify for protection as a 'free-standing original literary work' or (ii) could the 256 character max text extract be regarded as a 'substantial part' of a work?

The Judge decided in NLA's favour on both issues. What's interesting is how the Judge analysed the issue. Following the Infopaq decision of the European Court of Justice in July 2009. In analysing the issue, the Judge said that there is no distinction between the whole and the part of a work. He concluded that "In my opinion headlines are capable of being literary works, whether independently or as part of the articles to which they relate."

The Judge decided that the proper approach is to look at the part in question (whether the headline of the article or the extract of the article) and to decide whether the part contains "elements which are the expression of the intellectual creation of the author".

 If that sounds like a very 'author-rights', continental approach to copyright analysis, you're right. The Judge went on to say that: "The effect of Infopaq is that even a very small part of the original may be protected by copyright if it demonstrates the stamp of individuality reflective of the creation of the author(s) of the article. Whether it does so remains a question of fact and degree in each case."

And just to show how 'cyberlaw' continues to draw on the past, the Judge cited the early 20th century University of London case where the Judge remarked "there remains the rough practical test that what is worth copying is prima facie worth protecting."

It's worth adding that the Judge rejected the Defendants' argument that use of extracts was protected by the 'fair use' defences of criticism and review or reporting current events.

Whether this case has judged the rules about deciding copyright infringement where part only of a work is taken is debatable. What it does show - if it is not overturned on appeal - is that the UK and Continental Europe are getting closer in their respective approaches. It does not, in my view, mean that any copying of however small an amount will infringe copyright. But clearly, where what is taken is the distillation and essence of the source work's subject matter, the risk of infringement is high.

So all the more reason why we need to ensure that permissions are communicated clearly and unambiguously and 'travel with the work' in a machine readable world.

Have a good week

Laurie Kaye

 

 

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