Businesses should review their licensing arrangements for any press-aggregator or news alert arrangements they have in place in light of the latest ruling on the long running dispute between Meltwater and the Newspaper Licensing Agency (NLA).
Meltwater provides press-aggregator services where, for a fee, it sends updates to clients when articles containing key words appear in the online press. Meltwater’s service is similar to the free service provided by Google Alerts. The NLA represents a number of key publications in the UK and has historically collectively licensed reproduction and sharing of newspaper articles.
The NLA has long been concerned about the threat of the internet and online services to its traditional licence models, and was of the opinion that both the press-aggregators themselves and their customers were breaching UK copyright laws by providing or using these services without the relevant licence from the NLA. Meltwater argued that licences weren’t required as their customers were only receiving headlines or short excerpts of the relevant articles, which was too insubstantial to be considered a copyright work.
Last week, the Copyright Tribunal found in favour of the NLA and has stated that a licence is required where links to articles are circulated to businesses – whether the link is accompanied by an extract of the relevant article or simply with the headline.
Although the tribunal found in NLA’s favour it did make a valuable concession. It agreed to reduce the applicable licence fees payable by Meltwater, and other press-aggregator service providers, publishing a sliding scale of licence fees based on the number of end users of the service.
Implications for users of paid-for aggregation and alert services
Following this decision, users of paid-for news services should review the agreements that they have in place with their aggregation/alert service provider to see who is responsible for ensuring that the user’s use of the service is properly licensed.
If it is the user, then users should ensure they have in place an appropriate NLA licence.
Even if it is the provider that is contractually responsible, users may wish to check to see what contractual protections exist (such as an indemnity) in the event of a claim from the NLA for past infringement.
How does the ruling affect in-house services?
Some businesses provide press-aggregator services in-house which will also be caught by the ruling, and therefore, if your business does currently carry out these services itself then according to this ruling it will require a NLA licence to do so. Strictly speaking, this will be the case even if this service is as simple as an employee circulating a list of ‘hits’ that have been generated by a free on-line service.
How does it affect the use of free services like Google Alerts?
Importantly, the court held that free services, such as Google Alerts, shouldn’t be subject to a different set of rules to those companies, such as Meltwater, that charge a fee for their services. As the tribunal says, Google is not a charity – it simply uses a different revenue model. The underlying issue of copyright infringement remains the same.
In principle, this means that if a business uses Google News or Google Alerts then it will require a licence from the NLA to do so, otherwise it will be in breach of copyright laws.
However, on a practical level, the NLA has stated that it has been mandated only to licence organised link-forwarding of Google News and Google Alerts by commercial end users (though it doesn’t appear to be something that the NLA is actively pursuing at present and nor does the NLA appear to be going after Google…yet). General business use of Google News and Google Alerts i.e. use which doesn’t include forwarding (though technically also requiring a licence) seems to be out-with the NLA’s current mandate. In a press release the NLA has clarified that “ad hoc forwarding of interesting articles, tweeting [and use of] Facebook” to share links to articles online will not require a licence from the NLA.
This means that, in the long-term at least, businesses shouldn’t rely on Google Alerts as a free alternative to a paid-for aggregator service, simply to circumvent the need to pay for a NLA fee.
Certain aspects of the dispute remain. An appeal is yet to be heard by the Supreme Court on whether simply browsing the internet can be a copyright infringement – this is in relation to a finding made by the High Court last year.
On the other side of the Atlantic, on the day of the UK judgment, the Associated Press (which, broadly speaking, is the US equivalent of the NLA) filed a lawsuit against Meltwater’s Californian subsidiary with the New York courts. US copyright laws, and as such, the cases put forward by both parties are and will be different from in the UK, but nevertheless it will be interesting to hear what the outcome of this is – watch this space.
On February 21, 2012