Newspaper Licencing Agency Ltd (NLA) v Meltwater - [2011] EWCA Civ 890
In July 2011 the Court of Appeal upheld the decision of the High Court in December 2010 which confirmed that even a few words of a newspaper headline can attract copyright protection. As a consequence it is possible to infringe copyright by receiving and reading the headline in an email which contains the headline and a short summary of the associated news item.
The outcome of the case has consequences for the way links are used. In practice the ruling only affects paid-for services to businesses. No free-to-consumer service is affected.
The case concerned the news alerting business where news aggregators sell access to up to date news items generated from online newspaper content. The court held that newspaper headlines can be literary works independent of the newspaper articles themselves.
For users the acts of choosing to receive an email, opening that email, clicking on a link within the email and following that link in a browser to content on a website are all acts which the copyright owner has the right to control. Without the rights holder’s permission performing such act can constitute copyright infringement. The end users who did not hold a web end-user licence from the publishers committed infringement of the publishers' copyright in receiving and using the service.
There are limits however.
Quick Facts
Meltwater was carrying on the business of a commercial media monitoring organisation (MMO). Essentially Meltwater monitored media websites, including those of the publishers of national newspapers (here represented by the NLA), with a computer programme which collected or read content on those sites. The purpose was to communicate to its clients an email alert which contained selected portions of the news items based on the client’s choices.
Court Finding
The Court of Appeal held that copyright can subsist in a newspaper headline alone (but not always), and that most of the extracts from articles sent electronically to users/clients will infringe copyright unless the recipient has a licence from the NLA or the publishers to receive them.
The case restates that many of the regular simple actions that are taken such as opening an email, reading the content of that email and clicking on a link within that email are actions that are capable of infringing someone’s copyright.
The copies made by the end-user's computer of the email when it is received, when it is opened and when it is accessed are an infringement of the rights holder’s copyright unless there is permission.
One individual copying incident can be infringement and another similar copying incident may not be. It depends on what rights attach to the content being copied.
Some Questions
(1) Does our college need an NLA licence? Does it need a special one to allow staff and learners to access and read news items online?
You should check whether your college already has an NLA licence. Also the education exceptions to copyright apply to newspaper content as with any other content and clarification of how these have application in the work that FE and HE institutions carry out is explained on the JISC Legal website at - www.jisclegal.ac.uk/educationexceptions.
Essentially if your college is copying paid-for newspaper services and re-using content from newspaper publisher websites then it is likely that you need an NLA licence. Details of the NLA Educational Licence here - http://www.nla.co.uk/default.aspx?tabid=69.
(2) What does this mean for existing links that we have in a VLE to external newspaper resources?
Many existing links to resources will not infringe copyright. Although the case restates that where even small amounts of content such as news headlines are copied infringement can occur, in practice, the ruling only affects paid-for services to businesses. No free-to-consumer service is affected. So if your institution (or some staff member at your institution) subscribes to newspaper content online and copies items and links from the subscription content into emails and sends these emails to other staff members then this is likely to require a licence from the rights holder of the content.
(3) What are the education exceptions in copyright law
How the education exceptions have application in the work that FE and HE institutions carry out is explained on the JISC Legal website at - www.jisclegal.ac.uk/educationexceptions.
Summary
The case does not suggest that the usual copyright exceptions will not apply to content that is linked to in email messages.
It just states that in the particular circumstances of commercial news headlines and their monitoring and copying for commercial gain – much of the content will attract copyright protection and use of this commercially valuable content without a licence is likely to be infringement.
Citation
NLA v Meltwater (Court of Appeal) Neutral Citation Number: [2011] EWCA Civ 890 - http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2011/890.html.