The Court of Appeal today upheld a High Court judge's decision that customers of media monitoring services which provide digests of news from websites run by newspapers need licences from the publications involved, in order to avoid breaching their copyright.
The Newspaper Licensing Agency (NLA) and a group of national newspaper publishers won the original decision against Dutch-based media monitoring company Meltwater, its UK subsidiary Meltwater News UK Ltd, and the Public Relations Consultants Association (PRCA), a PR industry representative body.
Mrs Justice Proudman found in November last year that the users of these monitoring services needed licences to receive, copy and distribute newspapers' web content.
Today, in the Court of Appeal, Sir Andrew Morritt, Chancellor, sitting with Lord Justice Jackson and Lord Justice Elias, rejected an appeal brought solely by the PRCA against that decision.
Sir Andrew said Mrs Justice Proudman had concluded that:
* The headlines to the various articles reproduced in Meltwater News were capable of being literary works independently of the article to which they related;
* The extracts from the articles reproduced in Meltwater News with or without the headline to the article were capable of being a substantial part of the literary work consisting of the article as a whole;
* Accordingly each of the copies made by Meltwater News' end-users' computers in receiving the e-mail from Meltwater, opening it, and accessing the Meltwater website by clicking on the link to the article, and the copies of the article itself made when clicking on the link indicated by Meltwater News was, on the face of it, a breach of the publishers' copyright;
* Legislation dealing with temporary copies, or fair dealing for copyright material, or Database Regulations did not allow such copying;
* Thus, the end-user required a licence from NLA or the publisher in order lawfully to receive and use the Meltwater news service.
Sir Andrew also rejected the PRCA's argument that the requirement for end-users of services such as those provided by Meltwater News to have two licences - one each from the NLA and the individual publisher - was simply an attempt to make users get two licences for one act of copying, which should require only one licence.
"The copies created on the end-user's computer are the consequence of the end-user opening the e-mail containing Meltwater News, searching the Meltwater website or accessing the publisher's website by clicking on the link provided by Meltwater," Sir Andrew said.
"They are not the same copies as those sent by Meltwater.
"PRCA admitted as much in its defence and the agreed statement of facts. For these reasons I consider that the double licensing contention is unmaintainable."
But Mrs Justice Proudman's declaration of the need for PRCA to have two licences went a little further than her conclusions might have warranted, Sir Andrew said.
Not every recipient and/or user of Meltwater News would, in all cases, infringe copyright so as to need a licence or consent from the publisher, he said, adding: "A licence would not be required in such a case but there cannot be many of them.
"Accordingly I consider that the form of declaration requires some modification such as the insertion of the words 'most if not all' before the words 'members of the PRCA'."
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