Introduction

The case of The Newspaper Licensing Agency Ltd & Ors v. Meltwater Holding BV & Ors ([2012] RPC 1) stands as a significant judicial decision in the realm of copyright law within England and Wales. Heard by the Court of Appeal (Civil Division) in 2011, this case addressed the intricate issues surrounding the licensing of online publications and the extent of copyright infringement liabilities.

Parties Involved:

• Claimants: The second to seventh claimants, collectively known as "the Publishers," are national newspaper publishers and members of The Newspaper Licensing Agency Ltd ("NLA").
• Defendants:
  • Meltwater Holdings BV: A Dutch holding company operating the Meltwater News commercial media monitoring organization.
  • Meltwater News UK Ltd: The UK subsidiary through which Meltwater conducts its operations.
  • Public Relations Consultants Association Ltd ("PRCA"): An association representing public relations consultants who subscribe to Meltwater News services.

Key Issues:

• Whether Meltwater requires a Web Database Licence ("WDL") to lawfully provide Meltwater News.
• Whether end-users, represented by PRCA members, require a Web End User Licence ("WEUL") to receive and use Meltwater News without infringing copyright.

Summary of the Judgment

The Court of Appeal upheld the decision of Proudman J, affirming that both Meltwater and the end-users (PRCA members) require appropriate licenses from NLA or the Publishers to lawfully distribute and utilize Meltwater News. The key findings were:

• Headlines and extracts provided by Meltwater News are considered substantial parts of the original literary works of the Publishers.
• End-users' copying of these extracts constitutes copyright infringement unless they hold a WEUL.
• Defenses such as temporary copies under s.28A CDPA and fair dealing under s.30 CDPA were rightly rejected.
• The contention of double-licensing by PRCA was dismissed as unmaintainable.

Consequently, the declaration that end-users require a licence to avoid copyright infringement was largely upheld, with minor modifications suggested.

Analysis

Precedents Cited

The Judgment extensively referenced prior cases and legal provisions to substantiate its conclusions:

• University of London Press Ltd v University Tutorial Press Ltd [1916] 2 Ch 601: Established that originality in copyright does not equate to novelty but originates from the author's own creation.
• Infopaq International A/S v Danske Dagblades Forening [2009] ECDR 16: European Court of Justice decision that informed the interpretation of "substantial part" in copyright infringement.
• Fairfax Media Publications Pty Ltd v Reed International Books Australia Pty Ltd [2010] FCA 984: Considered the copyright status of newspaper headlines.
• Additional cases such as Dicks v Yates (1881), Lamb v Evans [1893], and Francis Day & Hunter Ltd v Twentieth Century Fox Corpn [1940] were referenced to support the notion that headlines can be protected as literary works.

Legal Reasoning

The court's reasoning centered on the interpretation of the Copyright Designs and Patents Act 1988 (CDPA) and relevant directives:

• Existence of Copyright: The court determined that both headlines and extracts from articles are original literary works under s.1(1)(a) CDPA. Proudman J accepted that headlines require originality due to the skill and creativity involved in their creation.
• Substantial Part Test: Applying the Infopaq test, the court concluded that even small extracts (up to 256 characters) can constitute a substantial part if they embody the author's intellectual creation.
• Defenses Rejected:
  • Temporary Copies (s.28A CDPA): The judge correctly found that the copies made by end-users were not temporary or incidental but permanent and economically significant.
  • Fair Dealing (s.30 CDPA): The use of extracts did not qualify as fair dealing for criticism, review, or reporting current events as defined by the statute.
• Double Licensing Argument: The court dismissed PRCA's contention that licensing Meltwater suffices, clarifying that end-users making copies independently require their own licenses.

Impact

This judgment reinforces the stringent requirements for licensing when using copyrighted material, especially in digital formats. Key impacts include:

• Licensing Obligations: Organizations providing services that involve reproducing or extracting content must secure appropriate licenses not only for themselves but also ensure their end-users are licensed.
• Substantial Part Interpretation: The court's application of the Infopaq test underscores that even minimal excerpts can infringe copyright if they encompass the original's essence.
• Defence Limitations: Limited scope for defenses such as temporary copies and fair dealing in commercial contexts, emphasizing the necessity for proactive compliance with copyright laws.
• Precedential Value: This case serves as a precedent for future disputes involving database rights, media monitoring services, and the use of copyrighted material in business models.

Complex Concepts Simplified

Substantial Part Test

Determining whether a portion of a work is a "substantial part" involves assessing if the excerpt captures the essence or an essential feature of the original work, not merely its length or quantity.

Intellectual Creation

An "intellectual creation" refers to the unique expression of the author's ideas, reflecting their creativity and effort in crafting the work. It doesn't equate to novelty but emphasizes originality.

Temporary Copies (s.28A CDPA)

This defense allows for transient or incidental copying that occurs as a necessary part of technological processes, such as caching data for efficient transmission over networks. However, it doesn't apply when copies are made for other purposes.

Fair Dealing (s.30 CDPA)

A narrow exception permitting limited use of copyrighted material without permission for specific purposes like criticism, review, or reporting current events, provided appropriate acknowledgment is given.

Double Licensing

The argument that obtaining a license for providing a service automatically covers end-users is flawed. License agreements typically pertain to specific actions, and end-users may need separate licenses for their use.

Conclusion

The NLA v. Meltwater Holdings case underscores the importance of comprehensive licensing in the digital age, particularly for services that involve aggregating and disseminating content. The court's affirmation that both content providers and end-users hold responsibility for licensing ensures that intellectual property rights are robustly protected against infringement. This decision serves as a vital reference point for businesses operating in media monitoring and similar sectors, highlighting the need for diligent compliance with copyright laws to avoid legal liabilities.

Moreover, the dismissal of defenses like temporary copies and fair dealing in this context reinforces the judiciary's stance on the sanctity of copyright, especially in commercial applications. As digital content continues to proliferate, this judgment provides clear guidance on the boundaries of lawful use, emphasizing that explicit licenses are necessary to legally operate services that replicate and distribute protected works.