UK Supreme Court

Meltwater and the Public Relations Consultants Association are seeking to take their appeal to the Supreme Court

Credit: Rev Stan

News aggregator Meltwater has lost its appeal of a ruling which found its users would need to pay a licence to receive and use online newspaper content.

In a judgment issued today (27 July) by the Court of Appeal, Chancellor of the High Court Sir Andrew Morritt said he agreed with a High Court ruling that end users of Meltwater's service would require a licence from the Newspaper Licensing Authority (NLA) or the relevant publisher, to avoid infringing copyright.

"What is in issue is not whether any particular extract is a substantial part of the original but whether the conduct of the business of Meltwater is such as, on a balance of probability, likely from time to time to cause its clients, prima facie, to infringe the copyright of the publishers in the original work so as to justify the making of the declaration.

"The judge concluded that it was. I see no ground on which this court would be entitled to interfere with her conclusion."

The NLA had introduced a scheme in September 2009, which licensed media monitoring organisations and the use of its members' websites with the granting of a Web Database Licence.

It also announced a further scheme in January last year, for licensing the use of its members' websites by end-users of the services of media monitoring organisations, such as public relations consultants. Under this scheme the end user would need to obtain a Web End User Licence.

At the time more than 22 aggregators and 280 companies agreed to the new licences, according to the NLA, but Meltwater refused, referring the NLA's licences to the Copyright Tribunal.

The aggregator was supported by the Public Relations Consultants Association, arguing that media monitoring services and their customers create "temporary copies" of stories.

Today both organisations said they intend to seek permission to appeal the ruling to the Supreme Court.

In his judgment, Sir Morritt did say there may be some cases in which neither the headline nor the 'scrapings' of online news constitute a copyright work or a substantial part of a copyright work.

"A licence would not be required in such a case but there cannot be many of them," he added.

"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'."

Responding to the news Francis Ingham, chief executive of the PRCA, told he was partly pleased with the result.

"It's not upholding the High Court ruling, it's different in a crucial respect. It will only be in very rare circumstances that headlines are copyrightable and that's a very definite change from the High Court ruling.

"The bit we're unhappy with is around potentially making millions of normal people infringers of copyright by saying that copyright exists once you click onto that link of the site.

"That's what we're seeking leave to refer to the Supreme Court because we think it's a fundamental issue that goes much further than the PR industry or newspaper industry".

Jorn Lyseggen, CEO and founder of Meltwater added that the main issue with the NLA licences was about making its users also pay up.

"Meltwater has agreed to sign up to a licence. The core issue is not whether Meltwater needs a licence, the core issue is whether our clients need an additional licence.

"That's what we think is wrong. We don't think our clients should have to pay for news articles pointed to by Meltwater. These are articles that are freely available that they can find on their own. To us it is absurd."

NLA managing director David Pugh said in a release that the company, which is owned by the UK's eight national newspaper groups, welcomes the ruling.

"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."

He added that it 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."

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