Online Copyright Case Study: NLA vs. Media Monitoring Agencies

Online Copyright Case Study

Online Copyright Case Study: The Meltwater Media Clipping Crisis

Between 2010 and 2014 a seminal online copyright case occupied European courts — and the outcome proved globally significant. The case involved the Newspaper Licensing Agency (NLA) – a UK news consortium established in 1998 to oversee “the granting of blanket licenses to the copyright of newspapers.”

Online Copyright Case Study: NLA v. Meltwater

Mostly used by public relations firms, media monitoring services provide regularly scheduled press clippings. Yes, Google arguably rendered the NLA irrelevant – but that didn’t stop the service from trying to collect receivables!

When it became apparent that search engines provided the same services for free, most media monitors chuffed but continued to play along with the NLA and paid the “Web licensing” fee. Meltwater News, however, said, “Thanks, but no thanks.” To test the legal waters, the NLA decided to sue Meltwater. At first, Meltwater won, but by 2014, a high court had reversed the decision.

Online Copyright Case Study: Lower Courts Side With NLA

What were the lower court’s reasons for siding with the NLA? Well, they decided that a headline, alone, can be copyrighted. Many writers would likely agree with that sentiment, but the legal ramifications would have unintended, disastrous effects.

Why? Well, first consider that every time you pull up a website, you’re technically making a copy of that webpage. The reason why it’s not considered copyright infringement is because nearly all jurisdictions – both domestic and international – accept that by creating a website, the operator is giving users an implicit license to make a transient copy of the page, for viewing. Moreover, the advent of search-blocking technologies, like password-protected sites and robots.txt files, makes it that much clearer as to whether or not an operator’s intention is for the page to be public or private. Plus, under the Copyright, Designs and Patents Act, the only mandatory provision is that fees should not be charged in cases where an act is “carried out for the sole purpose of enabling… a lawful use of a work.”

Online Copyright Case Study: Unintended Consequences Led To Ruling Reversal

The NLA said its only intention was to enforce fees on MM services, but the precedence left the door open for a slew of Internet law lawsuits, and in 2014, the UK Supreme Court reversed the decision, declaring that Meltwater’s clients didn’t need licenses to view collated copyright material online. Why?

  1. “Article 5.1 [of the European Directive Directive 2001/29/EC which covers “temporary copies”[1]:item 9,11] is an exception to the copyright owner’s right to control the reproduction of his work. It necessarily operates to authorize certain copying which would otherwise be an infringement of the copyright owner’s rights.”[1]:item 36
  2. “[I]t has never been an infringement, in either English or EU law, for a person merely to view or read an infringing article in physical form. This state of affairs, which is recognised in the enumeration of the copyright owner’s rights in articles 2, 3 and 4 of the Directive, has never been thought inconsistent with a high level of protection for intellectual property.”[1]:item 36 (Also noted was that to prohibit mere viewing would make infringers of millions of people who would be unaware or unable to prevent themselves from being shown, or temporary automated copies made, of such material, insofar as almost all online content is some person’s copyright.)
  3. The court noted in its ruling, that earlier rulings were made without the benefit or citation of recent crucial cases such as Football Association Premier League Ltd v QC Leisure and Others (C-403/08, F.S.R. 495), Karen Murphy v Media Protection Services Ltd (‘Premier League’) (C-429/08, 1 CMLR 769), and Infopaq International A/S v. Danske Dagblades Forening (‘Infopaq II’) (Case C-302/10), which strongly informed the outcome.[1]:item 10

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Parallel U.S. Online Copyright Case Study: Associated Press v. Meltwater

Around the same time, Meltwater was also battling it out with the Associated Press in U.S. courts over the same issue. Unlike the U.K. Supreme Court, however, the AP ultimately won because the compilation of facts is protectable intellectual property under U.S. law. Plus, judges determined that Meltwater failed to present a solid fair use claim.

In the end, however, both sides opted to drop claims and work together to develop new products. How’s that for a happy ending, eh?

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