17 April 2013

Meltwater’ legal case on temporary copies referred to ECJ

 

The Supreme Court today referred to the European Courts of Justice (ECJ) the NLA and Meltwater legal case relating to 'temporary copying'.

 

The European Courts of Justice will now consider whether an alerts service delivered as a web link would be covered by the temporary copies exception. The UK Supreme Court favoured the appeal but has sought confirmation from the ECJ before issuing any final ruling on this issue.

 

The Supreme Court considered whether a Meltwater service in which the end user opened articles on a publisher site might fall within the temporary copying exception. The case followed an appeal on one narrow technical aspect of the ‘Meltwater’ legal case Court of Appeal judgment in 2011 (all other issues decided in the NLA’s favour remain unaffected).

 

There is no immediate impact on the NLA web licences. Newspaper headlines and text extracts

continue to attract copyright, Media Monitoring Organisations (MMO’s) will continue to require licences for the content they distribute, and end users will continue to require a licence for the content they receive by e-mail. The ECJ is expected to take many months to reach a conclusion so it could be two or three years before any final order is made.

 

David Pugh, Managing Director of the NLA said:

 

“We will now await the ECJ’s judgement on this matter –which may take some time regardless of the final outcome, we welcome the fact that core NLA principles have been upheld by the Supreme Court – paid-for web monitoring services using publishers’ content require copyright licences and therefore remuneration for publishers.”

 

 “We are also pleased to see that the Supreme Court acknowledged that if an end user of an alert service delivered as a web link (rather than by e-mail) were not required to pay a licence fee, then Meltwater’s licence fee would very likely be substantially higher – a view that the NLA expressed before the Copyright Tribunal last year.”

 

Notes to Editors

This Supreme Court referral to the ECJ relates to a narrow technical legal matter in the Meltwater legal case, following the resolution of earlier High and Appeal court proceedings and the Copyright Tribunal.

 

Meltwater continues to be licenced by the NLA for newspaper publishers online content.

The Copyright Tribunal has today delivered its Final Decision in respect of the Newspaper Licensing Agency's (NLA) Web End User Licensing scheme (WEUL).  It draws to a close proceedings in the Copyright Tribunal where Meltwater Group, supported by the PRCA, challenged the NLA on the legality and reasonableness of its proposed licensing and associated fees for online news content. Please see the full and joint Statement from all parties.

You will find the Final and Interim Decisions from the Copyright Tribunal in respect of the NLA's Web End User Licensing scheme here.

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 confirming the legality of licensing.  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."

The Newspaper Licensing Agency (NLA) welcomed today’s Court of Appeal judgment on its newspaper website licensing scheme, which upholds the ruling of the High Court, given in November 2010.

Managing Director David Pugh said:

“The Court of Appeal has today unequivocally confirmed the ruling of the High Court that online newspapers are copyright protected. It has given a clear declaration that most (if not all) businesses subscribing to a media monitoring service that contains content from online newspapers require a licence.  We welcome this ruling and the clarity it provides for publishers, media monitoring agencies and their clients.

“This positive interpretation of UK copyright law provides legal clarity and certainty for all players in the market.  Publishers can be sure of fair royalties for the use of their content, suppliers of paid-for online monitoring services will benefit from a level playing field and clients of such services know that their licence provides a simple way to guarantee compliance with the law.

"It also provides a clear vindication of our decision to have two licences, one for paid-for online monitoring service providers and one for their customers. Now we have legal clarity, we look forward to the Copyright Tribunal review of the commercial aspects of newspaper website licensing. The NLA would like to see as swift and complete a resolution as possible for all parties – publishers, media monitoring companies and their clients. Eighteen leading media monitoring organisations have already taken web licences, and they, like us, want a fair and equitable system."

Simon Clark of Berwin Leighton Paisner, who represents the NLA and the publishers, commented:

"The Court of Appeal has fully endorsed the trial judge's findings that copyright can subsist in a newspaper headline alone, and that most of the extracts from the articles sent by Meltwater electronically to their clients will infringe copyright unless their clients have a licence from the NLA or the publishers to receive them."

Background

? Licensing for newspaper web content began on 1 January 2010.

? Aggregators and end-users each need to take separate licences.

? Web licensing will begin to give content owners a fair albeit modest share of revenue made from their copyrighted content by commercial organisations.

? It applies only to paid-for services to businesses. No free-to-consumer service is affected. ? Invoicing for end users will commence following the Copyright Tribunal and will be backdated to January 2010

The Newspaper Licensing Agency (NLA) welcomed today’s High Court judgment on its web licensing scheme for paid-for newspaper monitoring.

Managing director, David Pugh, said: “We welcome today’s ruling from the High Court and are pleased that the Court recognises that newspaper publishers’ web content is protected by copyright law. We hope this ruling will help ensure a fair share of web monitoring revenue for publishers and a fair media monitoring market.

 “Creating news content for the web is a substantial investment for publishers - it is therefore only right that they take a share when others are profiting from it. We estimate the total UK market for online news monitoring to be worth around £10 million. As newspapers’ content is central to that market, we believe publishers should earn a fair share of revenues from paid-for monitoring.

 “The NLA has always sought to foster a thriving market in news monitoring and today’s ruling will further that aim. We have been resolute in our aim of generating value for publishers and encouraging a legitimate media monitoring industry that respects publishers’ copyright.

 “Now we have legal clarity, we look forward to the Copyright Tribunal decisions on the commercial aspects of web licensing. The NLA would like to see as swift and complete a resolution as possible for all parties – publishers, media monitoring companies and their clients. Like the NLA, the 22 licensed monitoring companies want clarity to develop their businesses.

 The NLA sought a ruling from the High Court on whether users of paid-for aggregator services can receive, copy and distribute newspaper web content without a licence. The counter party was the Public Relations Consultants Association (PRCA), a representative body of the PR industry.

Meltwater News, an aggregator, supported by the PRCA, has also referred the NLA scheme to the Copyright Tribunal, which will meet to review the commercial terms for both end end-user and aggregator licences in February 2011.

Simon Clark, Head of Intellectual Property at Berwin Leighton Paisner, led the legal team advising the NLA and the newspapers claimants.  Simon commented: “This decision is significant for the publishing industry.  Firstly, it confirms that copyright can subsist in a newspaper headline.  Secondly, a company who pays for an online media monitoring service requires a licence from the newspapers or the NLA to click on a link to an article on the newspaper’s website or to receive text extracts taken from an article.”

Background

·         Licensing for newspaper web content began on 1 January 2010.

·         Aggregators and end-users each need to take separate licences.

·         Web licensing will begin to give content owners a fair albeit modest share of revenue made from their copyrighted content by commercial organisations.

·         It applies only to paid-for services to businesses. No free-to-consumer service is affected.

·         Invoicing for end users has been suspended pending the outcome of the Copyright Tribunal in February. Back-dated charging will apply if the NLA is successful.

NLA analysis has found that 61% of articles published to national newspaper websites are not found in print, and 44% of articles published in print are not published online. Full details of the research can be found on the NLA eClips Web blog.