The Newspaper Licensing Agency Ltd & Ors v Meltwater Holding BV & Ors

End users of a commercial media-monitoring service may require their own copyright licence where receiving and viewing the service creates electronic copies of protected material. A temporary-copy exception does not protect copies which are the very product consumed by the user, remain under the user’s control, or have independent economic significance. Newspaper headlines may qualify as literary works where the skill and labour involved gives them the necessary originality. Short extracts may infringe where they contain elements expressing the author’s intellectual creation. Fair dealing for criticism, review or reporting current events requires the statutory purpose, fairness and sufficient acknowledgement, including identification of the author where applicable.

The claimants were the Newspaper Licensing Agency and newspaper publishers. The defendants included Meltwater, which supplied commercial media-monitoring reports, and the Public Relations Consultants Association, whose members used the reports.

The NLA operated licensing schemes for media-monitoring providers and their customers. Meltwater had agreed to enter into a provider licence, but the issue concerning the third defendant was whether its members required separate Web End-User Licences to receive and use Meltwater News.

The reports contained hyperlinks, headlines, opening text and extracts from newspaper articles. The central issues were whether receipt, viewing, linking and forwarding involved restricted acts under the Copyright, Designs and Patents Act 1988, and whether the temporary-copy and fair-dealing exceptions applied.

1. Disposition. Without a licence from the publishers, end users infringed copyright by receiving and using Meltwater News.
2. Copying. The admitted creation of copies in an end user’s computer memory when reports were received or viewed meant that the end users copied material already reproduced by Meltwater. A provider’s licence could not imply permission to make further copies. The exhaustion and derogation-from-grant arguments therefore failed.
3. Protected material. Applying Infopaq International v Danske Dagblades Forening [2010] FSR 495, originality rather than mere quantity was decisive. Some headlines were capable of being independent literary works; others formed part of the related articles. Extracts were capable of being substantial parts where they expressed the author’s intellectual creation. The question remained one of fact and degree.
4. Databases. Although the publishers’ websites were capable of being databases, the alleged copying concerned article contents, not the selection or arrangement of the databases. The end users therefore did not require licences on that basis.
5. Temporary copies. The requirements identified in Infopaq were cumulative. Section 28A of the Copyright, Designs and Patents Act 1988 did not apply because the copies were made to enable the user to receive and read the service, were generated by the user’s volition, remained under the user’s control and had independent economic significance.
6. Fair dealing. The end users did not use the material for criticism or review. Nor was the service intended to report current events to the public. The Court of Appeal’s approach in Newspaper Licensing Agency Ltd v Marks & Spencer plc [2001] UKHL 38 and [2003] 1 AC 551, together with Ashdown v Telegraph Group Ltd [2002] Ch 149, was highly persuasive: commercial, non-public copying generally fell outside the statutory exception. In any event, the scale and purpose of the copying were inconsistent with fair dealing.
7. Acknowledgement. A hyperlink identifying the article was not sufficient acknowledgement because it did not identify the author. Section 178 required identification of the author unless the work was published anonymously.

First-instance decision. The judgment records that Newey J stayed the claim against Meltwater after Meltwater agreed to enter into a licence and directed an expedited trial against the PRCA.