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

Factual and Procedural Background

The Publishers, comprising the second to seventh claimants and members of the first claimant Company A, manage intellectual property rights and licensing for national newspaper publications. Company A promulgates licensing schemes authorising the use of members' online publications. The first defendant, Company B, is a Dutch holding company operating a commercial media monitoring organisation ("MMO") through its UK subsidiary, the second defendant. The third defendant is an association representing public relations consultants ("PRCA"), whose members subscribe to the MMO's services.

Company B operates by monitoring media websites, including those of the Publishers, using automated software to 'scrape' content and provide clients with alerts containing headlines, extracts, and hyperlinks to articles referencing specified search terms. Company A issued licensing schemes requiring MMOs to hold a Web Database Licence ("WDL") and their clients to hold a Web End User Licence ("WEUL"). Company B contested the need for a WDL and challenged the terms before the Copyright Tribunal. PRCA intervened, asserting its members did not require a WEUL.

Both Company B and PRCA argued before the Tribunal that no copyright infringement occurs without such licences, but the Tribunal lacked jurisdiction on these questions. Consequently, Company A and the Publishers commenced proceedings seeking declarations that Company B and PRCA members require licences to lawfully provide, receive, and use the MMO's news services. The claim against Company B was stayed pending the Tribunal reference, and an expedited trial against PRCA proceeded, resulting in a judgment that PRCA members require a licence to lawfully receive and use the service.

Legal Issues Presented

1. Whether newspaper headlines reproduced in the MMO's news service qualify as original literary works protected by copyright.
2. Whether extracts from articles reproduced in the MMO's news service constitute a substantial part of the literary works, thereby infringing copyright.
3. Whether the acts of copying by end-users when receiving and accessing the MMO's news service infringe the Publishers' copyright.
4. Whether statutory defences under sections 28A (temporary copies), 30 (fair dealing), and relevant database regulations apply to the alleged infringements.
5. Whether end-users require a separate licence (WEUL) in addition to the MMO's licence (WDL), or whether this constitutes impermissible double-licensing.

Arguments of the Parties

Appellant's Arguments (PRCA)

• The judge erred in concluding that PRCA members require a licence to receive and use the MMO's news service.
• The requirement for separate licences for both the MMO and end-users results in unjustified double-licensing, contrary to established principles observed in the press clippings agency context.
• In an online environment, a licence granted to the service provider should encompass the inevitable copies made by end-users, as sending and receiving are inseparable acts.
• If the double-licensing argument fails, the judge was wrong on the issues of copyright subsistence in headlines and extracts, infringement, and the applicability of statutory defences.
• Statutory defences under sections 28A and 30 CDPA and the Database Regulations should apply, absolving end-users from infringement liability.
• The judge took too narrow a view of fair dealing for criticism, review, and reporting current events.
• Contractual terms restricting use of Publishers' websites beyond statutory permissions are void.

Respondents' Arguments (Company A and Publishers)

• Newspaper headlines are original literary works or form part of such works and are thus protected by copyright.
• Extracts reproduced in the MMO's news service constitute a substantial part of the articles, infringing copyright when copied by end-users.
• Copies made by end-users when receiving and accessing the news service infringe copyright and are not exempted by statutory defences such as temporary copies or fair dealing.
• The double-licensing argument is factually incorrect because the MMO's licence does not authorise the end-users' acts of copying; therefore, separate licences are required.
• Contractual terms imposed by Publishers on their websites bind end-users and support the need for licences.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by examining whether the elements reproduced by the MMO in its news service—headlines and article extracts—qualify as original literary works under section 1(1)(a) CDPA. Evidence established that headlines are often independently created by editorial staff, involving skill and intellectual effort, satisfying the originality requirement. The court accepted that some headlines constitute independent literary works, while others form part of the articles themselves.

Regarding the extracts, the court applied the substantiality test of quality over quantity, referencing the Infopaq decision. It concluded that many extracts reproduced by the MMO, combined with headlines and opening text, express the author's intellectual creation and thus constitute substantial parts of the original works. This leads to prima facie copyright infringement when copied by end-users.

The court then considered statutory defences. The temporary copies exception under section 28A CDPA was rejected because copies made by end-users are not transient acts integral to a technological process but are intentional and have independent economic significance. Fair dealing under section 30 CDPA was also rejected as end-users do not engage in criticism, review, or reporting current events; their use is commercial and designed to monitor mentions rather than to inform the public.

The court further rejected the argument that database rights and related regulations permit the extraction made by the MMO and its users, distinguishing copyright infringement in literary works from database rights and noting that end-users without licences are not lawful users under the regulations.

On the issue of double-licensing, the court found the argument unpersuasive. The MMO's licence (WDL) does not authorise the end-users' acts of copying; thus, end-users require separate licences (WEUL). The acts of copying by end-users occur independently and are not covered by the MMO's licence. The court emphasized that the mere grant of a licence to the MMO does not obviate the need for end-user licences.

The court acknowledged that not every recipient of the MMO's news service will infringe copyright, as some extracts may not be substantial parts, but concluded that most end-users will likely infringe and thus require a licence.

Holding and Implications

The appeal by PRCA is dismissed.

The court upheld the finding that members of PRCA require a licence or consent from Company A or the Publishers to lawfully receive and use the MMO's news service. It confirmed that newspaper headlines can be original literary works and that extracts reproduced in the service often constitute substantial parts of the original articles, leading to prima facie copyright infringement when copied by end-users.

The court rejected statutory defences and the double-licensing argument, affirming the necessity of separate licences for both the MMO and its end-users. The decision clarifies that the MMO's licence does not extend to end-users' acts of copying, who must themselves obtain licences to avoid infringement liability.

No new precedent was established beyond the application of existing copyright principles to the facts. The ruling directly affects the licensing practices of media monitoring services and their clients, emphasizing the need for appropriate licences to avoid copyright infringement.