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

Copyright in newspaper material depends on the author’s original expression, not novelty or merit. A headline may be an original literary work. A short extract may be a substantial part where it conveys the author’s intellectual creation. Temporary-copy and fair-dealing exceptions do not protect copies voluntarily made to receive and read monitored content. Database rights do not immunise copyright infringement in literary works stored in a database. A licence granted to an online provider does not authorise distinct copies made by its recipient. Declaratory relief may be granted where infringement is likely, but the declaration must not state that every recipient inevitably infringes.

The newspaper publishers and the Newspaper Licensing Agency sought declarations that Meltwater required a licence to provide its media-monitoring service and that public-relations users required a licence to receive and use it. The claim against Meltwater was stayed, and Proudman J determined the claim against the Public Relations Consultants Association’s members in the judgment reported at [2010] EWHC 3099 (Ch).

The High Court held that headlines could be literary works, extracts could be substantial parts of articles, and the relevant copies were not protected by the temporary-copy, fair-dealing or database exceptions. The appeal concerned whether those conclusions were correct and whether licensing the provider necessarily authorised the recipient’s copies.

1. Disposition. The Chancellor gave the leading judgment. Jackson LJ and Elias LJ agreed. The appeal was dismissed, but the declaration required modification because it went beyond the findings: not every recipient or user would inevitably infringe, although most if not all members of the PRCA were likely to do so.
2. Originality and headlines. Under section 1(1)(a) of the Copyright Designs and Patents Act 1988, originality means that the work originated with the author. It does not require novelty or merit. The court applied the approach in University of London Press Ltd v University Tutorial Press Ltd [1916] 2 Ch 601, approved in Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273. Infopaq International A/S v Danske Dagblades Forening C-5/08 [2009] ECDR 16 did not qualify that domestic test. Newspaper headlines were capable of being independent original literary works or parts of the underlying articles.
3. Substantiality. The test is qualitative rather than quantitative, as confirmed by Newspaper Licensing Agency Ltd v Marks & Spencer plc [2003] 1 AC 551. A short extract may infringe if it conveys an element of the author’s intellectual creation. Headlines, opening words and search-hit extracts could together constitute a substantial part. The court need not decide every individual extract before granting a declaration where the service was, on the balance of probabilities, likely from time to time to cause prima facie infringement.
4. Defences. The five conditions for the temporary-copy exception are cumulative. Copies made by a user’s voluntary act to receive and read the material are the object of the process, not an integral and essential part of it, and have independent economic significance. The fair-dealing defence also failed: the users were not criticising or reviewing the material, nor reporting current events, and there was no sufficient acknowledgement because authors were not identified. In any event, the commercial dealing encouraged infringement and was not fair.
5. Database rights and licensing. Regulation 19 of the Copyright and Rights in Databases Regulations 1996 invalidates contractual restrictions only insofar as they prevent extraction or re-utilisation of insubstantial parts. It does not protect copyright in literary works contained in a database, and applies only for a lawful user. The provider’s Web Database Licence did not authorise the separate copies made on the end-user’s computer. The end-user’s conduct therefore had to be assessed independently and could require a Web End User Licence.
6. Contractual terms. The court declined to determine any independent contractual rights arising from website terms. The proceedings concerned copyright rights only.

1. Court of Appeal (Civil Division) dismissed the PRCA’s appeal and directed that the declaration be qualified so that it did not apply inevitably to every recipient or user.
2. High Court of Justice, Chancery Division, Proudman J, held that PRCA members required a licence to receive and use the Meltwater News service: [2010] EWHC 3099 (Ch).