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The Newspaper Licensing Agency Ltd and Others v Meltwater Holding BV and Others

Written by Michael Coyle on 07 December 2010

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The questions asked in the case were:

1. whether customers of a media monitoring service required a licence from the copyright licensing agency of the British newspaper industry to receive information which had been taken from media websites,

2. whether newspaper headlines were capable of copytight protection, and;

3. whether extracts from articles were capable of copytight protection.

The Newspaper Licensing Agency claimed that the end-users (the trade association of the companies which used Meltwater's services) required a licence to receive the Meltwater news service without infringing their copyright.

Background

Meltwater provided, as a hyperlink or extract in emails, reports of details of articles containing customer search terms. These results were within a defined period and were taken from a wide range of publishers using specific software and consisted of the news headline, opening text and an extract from the news article.

Meltwater's web crawling software crawled through and indexed news sites and provided their users with customised search functions that produced the results which were emailed to the customers.

Leading British Newspapers had spent millions on developing their websites and Meltwater was making millions from using software to 'scrape' the content from these sites for distribution. However, there are free media monitoring services such as Google whose activities are permitted leaving it open to the end-users to decide whether to use the paid services or the free services available without opposition from the publishers regardless of whether the were using the services for profit.

Judgment

The Chancery Division found that with no licence from the publishers there was infringement of the publishers copyright by the end users who received and used the commercial media monitoring service. Website indexing is copyright infringement as an entire copy of the infringed work is made and stored for future use. Therefore a licence was necessary.

Although it had previously been held that advertising slogans, book titles etc were not substantial enough for copyright protection Mrs Justice Proudman held that newspaper headlines could warrant copyright protection as they were striking and substantial enough in terms of content and length and the ability to write headlines required a skill in order to capture the reader's attention.

Applying the ECJ's decision in Case C-5/08 Infopaq International v. Danske Dagblades Forening [2010] FSR 495 it was held that parts of an article collected and provided by Meltwater could be substantial enough to warrant copyright protection.

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