Individuals may unwittingly infringe copyright on a daily basis by simply browsing the web or opening an email, if a recent UK decision is correct. The Court of Appeal in the UK in the case of NLA v Meltwater News has upheld a High Court decision that a newspaper headline can attract copyright protection and also that users of online news monitoring services may need a licence. This decision largely reaffirms the findings of the original judgment. For our previous article on this case, please see here. Irish newspapers and their licensing body, Newspaper Licensing Ireland, have been seeking licensing fees on the same basis in Ireland.

Meltwater News, the main party bringing this appeal, provides news aggregating/monitoring services.  It provides for its subscribers, by emails or links, copies of article headlines and extracts. In 2009, the National Licensing Agency (NLA), a collecting society representing various UK publications, introduced a “Web Database Licences” for online news monitoring service providers regarding the use of its members’ websites. Its members include Guardian News and Media Limited, and Telegraph Media Group Limited. Meltwater News refused to pay this licence and the NLA took a case against it for copyright infringement. In 2010, the NLA announced to some controversy that users of online news monitoring services would also need to obtain a “Web Database Licence”.

The following are some key findings from the decision:

Browsing the web may infringe copyright:  A somewhat controversial consequence of the finding in relation to online content is that individuals simply through browsing the web may inadvertently be breaching copyright.  The everyday acts of browsing, clicking through links and opening electronic files are all restricted acts of copying. In each instance, the computer creates a copy for the individual to view the content. Therefore, unless otherwise authorized by the copyright owner, users without a licence may well be breaking the law.

Article 5(1) of the Information Society Directive appears to have been intended to provide a fair degree of latitude so as generally to exempt copying that is technical and transient in nature. This is supported by Recital 33 of that Directive. It is disappointing that the Court failed to explain its narrow view of the provision, in effect, virtually limiting its scope to transmission acts and declaring that so-called “consumptive use” is not exempt. Unfortunately, in the same way, the economic significance of the acts in question does not seem to have received any detailed consideration.

Application of copyright to headlines:

Headlines that are independently created using skill and labour can be copyright works. Those that are not independently created in this manner are still part of the piece/article to which they relate, so care is still needed if an extract is made – see below.

Text extracts – substantial part of an article:

Copying a substantial part of a work will infringe. In deciding whether a text extract constitutes a substantial part of an article, the test is about quality not quantity. The level of skill and labour of the author must be assessed. If it is considered to be worth copying, even a small extract, it may be hard to argue that it is not substantial for the purposes of this test.

Requirement that users of online news monitoring services obtain licences:

The users of online news monitoring services were found to be making copies of article headlines and extracts by accessing reports via website links or email. This was found to constitute a prima facie breach of copyright by the user as making a copy is only permissible if authorised or if it falls within certain exemptions. Lord Justice Jackson stated that not every article headline and extract would “…constitute a copyright work or a substantial part of a copyright work”.  However, there was a sting in the tail, as he then went on to add, a “licence would not be required in such a case but there cannot be many of them”.

Publishers, users and providers of online news monitoring services had been awaiting this decision with keen interest due to the effect it is likely to have on the aggregating news industry. Meltwater News has stated that it intends to appeal this decision to the Supreme Court.

As set out in our previous discussion on this topic, this UK decision is not binding on the Irish Courts. However, in light of the considerable reference to EU jurisprudence in this case, and the fact that the appeal has reinforced the original decision of the Court, it is likely these findings could be influential if this area is litigated in Ireland. Nevertheless, it is expected that an Irish court would review the relevant law and its implications carefully if the issue comes to be litigated in Ireland. The enforcement of this judgment and the outcome of a potential future appeal will be closely scrutinised by all interested parties.

Contributed by David Cullen.