DON’T READ THIS HEADLINE WITHOUT ASKING ME FIRST: NLA v. Meltwater & PRCA: Part I

Simply opening a webpage on a computer can infringe copyright, according to The Newspaper Licensing Agency Ltd & Ors v. Meltwater Holding BV & Ors [2010] EWHC 3099 (Ch). If followed, Proudman J’s ruling could have a radical impact on free social media services, such as Twitter, LinkedIn and Facebook, as well as free monitoring services such as those offered by Google and Bing.

On the positive side, several arguments were not pursued before Proudman J, and could form the basis of a successful appeal to the Court of Appeal.

THE ISSUES

The single issue before the Judge was whether individuals and businesses (“End Users”) could lawfully “receive and use” e-alerts that contained headlines and extracts (256 characters or less in total) of online news articles without first obtaining permission of the Publishers of those online news articles.  See paragraphs 6 and 22.

The articles in question each had to be posted online before forming part of an e-alert, and were not behind paywalls.  The Publishers’ websites contain small links to terms and conditions in their footers that prohibit the commercial re-use of articles posted on those sites.  Each of these sites could be browsed and read regardless of whether the user had even seen the terms and conditions.

The e-alerts complained of by the Publishers are the same type of news alerts offered to the public by commercial search engines such as Google and Bing.  The Publishers argued that Meltwater’s e-alerts damaged their businesses by diverting web users away from their sites, although for reasons not disclosed they did not object to the copying, parsing and processing of their articles, and the subsequent emailing of extracts from those articles, by any search engine, even if such acts were carried out at the behest of and for the benefit of End Users.  See paragraph 20.  The Publishers also argued that recipients of these e-alerts who did visit their website would be doing so in breach of their terms and conditions.

THE LAW

The statute governing this case is the Copyright, Designs and Patents Act 1988.  The starting point is sections 16-18 an 23.

16 The acts restricted by copyright in a work.

(1) The owner of the copyright in a work has, in accordance with the following provisions of this Chapter, the exclusive right to do the following acts in the United Kingdom—

(a) to copy the work (see section 17);

(b) to issue copies of the work to the public (see section 18);

[...]

(c)…

[...]

(e)…

and those acts are referred to in this Part as the “acts restricted by the copyright”.

(2) Copyright in a work is infringed by a person who without the licence of the copyright owner does, or authorises another to do, any of the acts restricted by the copyright.

(3) References in this Part to the doing of an act restricted by the copyright in a work are to the doing of it—

(a) in relation to the work as a whole or any substantial part of it, and

(b) either directly or indirectly;

and it is immaterial whether any intervening acts themselves infringe copyright.

(4) This Chapter has effect subject to—

(a) the provisions of Chapter III (acts permitted in relation to copyright works), and

(b) the provisions of Chapter VII (provisions with respect to copyright licensing).

17 Infringement of copyright by copying.

(1) The copying of the work is an act restricted by the copyright in every description of copyright work; and references in this Part to copying and copies shall be construed as follows.

(2) Copying in relation to a literary … work means reproducing the work in any material form.

This includes storing the work in any medium by electronic means.

(3) …

(4) …

(5) …

(6) Copying in relation to any description of work includes the making of copies which are transient or are incidental to some other use of the work.

18 Infringement by issue of copies to the public.

(1) The issue to the public of copies of the work is an act restricted by the copyright in every description of copyright work.

[F1(2) References in this Part to the issue to the public of copies of a work are to—

(a) the act of putting into circulation in the EEA copies not previously put into circulation in the EEA by or with the consent of the copyright owner, or

(b) the act of putting into circulation outside the EEA copies not previously put into circulation in the EEA or elsewhere.

(3) References in this Part to the issue to the public of copies of a work do not include—

(a) any subsequent distribution, sale, hiring or loan of copies previously put into circulation (but see section 18A: infringement by rental or lending), or

(b) any subsequent importation of such copies into the United Kingdom or another EEA state,

except so far as paragraph (a) of subsection (2) applies to putting into circulation in the EEA copies previously put into circulation outside the EEA.]

[F2(4)References in this Part to the issue of copies of a work include the issue of the original.]

23 Secondary infringement: possessing or dealing with infringing copy.

The copyright in a work is infringed by a person who, without the licence of the copyright owner—

(a) possesses in the course of a business,

(b) sells or lets for hire, or offers or exposes for sale or hire,

(c) in the course of a business exhibits in public or distributes, or

(d) distributes otherwise than in the course of a business to such an extent as to affect prejudicially the owner of the copyright,

an article which is, and which he knows or has reason to believe is, an infringing copy of the work.

SUBSISTENCE OF RIGHTS

Is the reproduction of headlines an infringement of any of a Publisher’s copyrights? (paragraphs 57-72)

Here the issues to be resolved were whether the reproduction of a headline could infringe the article to which it attached, and whether there could be a separate, independent copyright in a headline alone.  It was accepted by the litigants that headlines were sometimes the result of independent skill and labour, written by different authors, and for a different purpose, than the article to which they attached.

Proudman J made three findings.

  1. First, a headline is capable of being a copyright work independent of its article depending on the process of its creation and the level of skill and labour that has gone into creating it.  The headline would have to be “independently and separately produced” by someone other than the author of the article.  See paragraphs 71-72 and 84.  This isn’t really surprising.
  2. Second, if the headline is not sufficiently original to be an independent work, but was written by the author of the article, then the work to be considered is the headline and article together.  Could a reproduction of the headline infringe the copyright in such a work?  To answer this question, Proudman J relied heavily, at paragraph 68, on the judgment of the ECJ in Infopaq to hold that the reproduction of any extract, whether a headline or snippet, is the reproduction of a part of the copyright work “if that extract contains an element of the work which, as such, expresses the author’s own intellectual creation” (Infopaq, at paragraph 48), meaning that “the various parts of a work thus enjoy protection under Art 2(a) of Directive 2001/29, provided that they contain elements which are the expression of the intellectual creation of the author of the work” (Infopaq, at paragraph 39).  Under this test, reproduction of a headline which summarizes the article may well amount to an infringement.
  3. Headlines that lack sufficient originality to be independent works and are written by third parties probably can be reproduced without fear of infringement. See paragraph 72.

None of this is really surprising, though perhaps it will be a rare case where a headline can meet this test.

Text extracts (paragraphs 73-86)

For articles in which copyright subsists (which will be the norm), the question here was whether the reproduction of (and possibly other acts in relation to) short extracts from these articles could infringe the copyright in those articles.  The question focusses on whether the extracts appropriate the skill and labour used by the author to make it an original copyright work (paragraph 83).

Put simply, if it includes “an expression of the intellectual creation of the author”, or, to restate it more poetically, “if it demonstrates the stamp of individuality reflective of the creation of the author or authors of the article”, then there is an infringement.  See paragraphs 74, 77 and 83.  This is sometimes referred to as the Infopaq test, but is really just a way to determine whether the extract contains a qualitatively, rather than simply a quantitatively, substantial reproduction of the underlying work.  (I’m not really sure why the judge refers to part of the extracts being “significant and striking” in paragraph 84.  This seems to be irrelevant, and a potential distraction to the real test.)

Clearly search engines, which copy not just all the words of the page but all the meta data contained in the page’s HTML, have the most to lose on this head since the UK has no fair use defence such as exists in the USA.

Websites as databases (paragraphs 87-92)

From para 31:

S. 3 CDPA provides that a database may be a literary work. S. 3A (introduced to give effect to the Database directive 96/9/EC) defines database for this purpose as “a collection of independent works, data or other materials which (a) are arranged in a systematic or methodical way, and are (b) individually accessible by electronic or other means”. S 3A (2) sets out a special definition of originality in relation to databases, namely “if, and only if, by reason of the selection or arrangement of the contents of the database the database constitutes the author’s own intellectual creation.”

The arguments in this section proceeded on the basis that a website could be a database for the purposes of section 3A CDPA, although PRCA denied that the sites relied on by the Publishers’ in this case met the threshold of originality to be databases.  See paragraph 89.

I’m not certain that it was correct to make this concession:  a website, presented on the client side (i.e. in the browser), is very different to the ordering of subfolders and files within the root folder on the server side.  It seems a stretch to hold that each webpage on the client side within a website has been “arranged in a systematic or methodical way”.  That would indicate that the structure of the database is simply the address of the pages in question.

Anyway, the point was not argued and is irrelevant after Proudman J held, at paragraph 91, that the scraping of articles was not copying “a substantial part of the effort that went into the structure [sic - section 3A uses the word 'selection'] and arrangement of the articles within the website”.  If a website is a database, however, I disagree with this reasoning:  scraping an entire website and copying it into memory is bound to copy not just part of the effort that went into the structure / selection and arrangement of each webpage within the website, but all of it, since scraping reproduces the client-side presentation of the site under the exact same address heirarchy.

But on the basis that I don’t think the client-facing website can, by itself, be a database, I think this is the correct conclusion.

Part II of this series will look at what Proudman J held constitutes infringement of headlines and text extracts, and will be posted tomorrow.

 

The Newspaper Licensing Agency Ltd & Ors v Meltwater Holding BV & Ors [2010] EWHC 3099 (Ch) (26 November 2010)

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