CorpComms Magazine

Several weeks ago the Newspaper Licensing Agency (NLA), the body that licenses organisations that copy newspaper content, won an important case in the Court of Appeal.

The immediate issue was a simple and straightforward aspect of copyright law. The court was asked whether it is okay, in specific circumstances, to copy and exploit journalists' work without their permission. The court said no.

But the verdict also held up a mirror to the Internet and the 'disruptive' businesses which have made it their business to rely on creative interpretations of copyright law. Occasionally these creative interpretations end up being tested in court, and the disruptive businesses find out the law doesn't bend quite as much as they hoped. The disruptors get disrupted, and they don't like it.

The party on the other side of the NLA case, Meltwater Group, is one such business. They saw an opportunity to make money online by exploiting other people's investment in content.

The opportunity they saw was to create a media monitoring service which scrapes and analyses content from hundreds of websites, then sells tailored feeds of relevant extracts and links to companies. If you want to monitor what is being said about your company or your rivals, and most companies do, this is the service for you.

Meltwater's innovation wasn't clever use of technology, and certainly not a brilliant and original idea. It was to do the same thing as many other companies, but without paying for the raw materials - the creative work of journalists. Unsurprisingly, they found it quite easy to win a lot of customers for their low cost services at the expense of the existing players licensed by the NLA.

So when the NLA developed new licences and services to help the media monitoring industry provide digital services to their clients, Meltwater (although consulted) was none too pleased. Meltwater's competition signed up to the new scheme. Meltwater, however, decided to challenge it legally through the Copyright Tribunal.

Clarifying the legal position

One of the Meltwater complaints was that the NLA scheme was unfair because it requires customers of media monitoring companies, as well as the monitoring companies themselves, to have NLA licences. And in any case they didn't think they needed a licence in the first place because they believe what they do is covered by various exemptions in copyright.

The Copyright Tribunal is unable to rule on these points of law, so the NLA decided to go to the High Court to ask for clarification on these points.

The judge's ruling was comprehensively in favour of the NLA. It also helpfully clarified a few longstanding legal ambiguities, including establishing that headlines are capable of being literary works in their own right and so can be protected by copyright.

Meltwater and their co-litigants the Public Relations Consultants Association (PRCA), went to the Court of Appeal, and got the same answers, only more emphatically expressed.

Meltwater and the PRCA still can't get to grips with this. They have asked for leave to appeal to the Supreme Court and have the matter referred to the European Court of Justice. Their argument has shifted and their central argument now is around interpretation of an obscure exception in copyright law for 'temporary copies'. They claim that what they do is covered by this exception.

This is patently absurd. I won't embark on a detailed analysis of the legal technicalities. However I will say that I spent a great deal of time debating, and contributing drafting ideas to, the wording of the 'temporary copies' exception in the EU Information Society Directive which gave rise to this exception in UK law. The clause in question was specifically written for the Internet era and its intention is very specific. It applies to the copies of content fleetingly made in routers and other intermediate bits of Internet technology while it is on its way to users.

It was never meant to give a free licence to people like Meltwater, and the extensive debate at the time was focused on trying to find the right wording to avoid such unintentional loopholes. The judges looked at the UK wording, and at the original directive, and correctly concluded that Meltwater's use falls well outside the exception.

Scare tactics

Meltwater and the PRCA are also claiming, as scarily as they can, that the judgment threatens or somehow criminalises web browsing. It doesn't.

This case is not about ordinary people using websites in the way the website wants and allows them to do. It is about the commercial exploitation of newspaper content by commercial operators in ways which are banned by the websites and, as the courts have now confirmed, the law.

Meanwhile, the battle has shifted back to the Copyright Tribunal, whose job it is to determine whether the prices charged by the NLA for licensing web content are fair. That case took place in September and the verdict is expected later in 2011 or early 2012.

By the time this is finally over, Meltwater could well have spent more than £2 million of its money on paying its own lawyers and the NLA's legal costs. Had it signed up to the NLA licence, it would have been required to pay a licence fee of just £10,000 and its customers would be paying an average licence cost of £500 a year. What it will have achieved with this case is a comprehensive judicial affirmation of copyright which eliminates any perceived ambiguity about whether their type of service is legal. And in the absence of an NLA licence or publisher agreement - it isn't.

They have done publishers everywhere a big favour, and paid for it too. The only people disrupted, in the end, is them. That's the sort of disruption we could use more of.

About the author

Dominic Young was previously a director and chairman of the NLA and was on the board when this case was started. He is a former director of strategy and IP at News International, a founder of the Automated Content Access Protocol project and a founder of the News Media Coalition. He is now an entrepreneur and he blogs at www.copyrightblog.co.uk

Click here to read Meltwater's response

Click here to read NLA managing director David Pugh's piece about busting online copyright myths

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