UK Court of Appeal Decides End-Users of Online Clipping Services Require License

The UK Court of Appeal has upheld the High Court ruling of Justice Proudman in The Newspaper Licensing Agency Ltd v Meltwater Holding BV, [2010] EWHC 3099 (Ch), which requires providers and end-users of media monitoring or “clipping” services to each obtain separate licenses from newspaper publishers or the Newspaper Licensing Agency (NLA). Meltwater and other media monitoring services use software to read online content from the web sites of publishers, searching for keywords which are specified by the end-users of Meltwater. Meltwater then provides the end-users with a hyperlink to the relevant article, the headline of the article, and an extract from the article showing the context in which the keywords appears. This information is available to the end-user either by e-mail or by logging on to the Meltwater web site. The key findings of the High Court's decision are:

• Headlines of the various articles are capable of being literary works independently of the article to which they relate.
• Extracts from the articles that are no longer than 256 words are capable of being a substantial part of the article as a whole and are therefore afforded copyright protection.
• Accordingly, the copies made by the end-user's computer of the headlines, extracts, and the articles themselves are all, prima facie, infringements of the publishers' copyright.

No such copying is permitted either, (a) by subsection 28A of the Copyright, Designs and Patents Act 1988 dealing with temporary copies, or (b) as fair dealing within subsection 30 of the same statute.

Accordingly, the end-user requires a license from the publishers or the NLA. The Court of Appeal affirmed all of the above findings. One of the most controversial aspects of the decision was the issue of double licensing. Meltwater is licensed by the publishers to send copies of the online articles to its end-users. It was argued that requiring end-users to obtain a separate license for these works would amount to double licensing. However, the Court rejected this argument, holding that copies created by Meltwater regarding its activities and copies created by end-users on the end-user's computer screen were separate acts of copying, and therefore the latter was not covered by the Meltwater license. For the full text of the Court of Appeal decision, see: http://www.bailii.org/ew/cases/EWCA/Civ/2011/890.html Summary by: Thomas Wong