Copyright in links

Shetland Times Ltd. v. Wills (Scotland)

Newspaper Licensing Agency Ltd and others v Meltwater Holding BV

The most important case to the copyright status of links in England and Wales is The Newspaper Licensing Agency Ltd & Ors v Meltwater Holding BV & Ors [2010] EWHC 3099 (Ch) (26 November 2010). [1]

The Newspaper Licensing Agency (NLA) is comprised of the eight UK national newspaper publishers. They license newspapers’ content to media monitoring firms. Meltwater is such a media monitoring company. Meltwater crawl newspapers’ online content for search terms and aggregate relevant articles in an email to clients. Most of their clients are PR firms who keep track of coverage related to certain issues on behalf of their own clients. The email contains the headline of each relevant article a hyperlink to the article, the opening words of the article and the text immediately surrounding the search terms which the client wants to monitor.

In September 2009, the NLA started charging media monitoring companies for a license permitting them to scan newspapers’ websites. Meltwater originally refused to pay and referred the issue to the Copyright Tribunal. They later agreed to pay an annual fee of £10,000 for the license.

The NLA introduced a separate licence in January 2010 which the clients of media monitoring companies were to pay. This was the key issue in The Newspaper Licensing Agency v Meltwater. The NLA argued that without this licence, Meltwater’s clients were breaking the copyright laws as set out in the Copyright, Designs and Patents Act 1988 (CDPA).

According to the NLA, by receiving and reading Meltwater’s emails, clients of Meltwater were making a copy of those emails and the copyright material in them (CDPA section 17). They were also in possession of an infringing copy in the course of business (section 23). When they clicked on a hyperlink to an article, they made a copy of the article (section 17) and were in possession of an infringing copy in the course of business (section 23). If they forwarded the email or any of the contents of the email, the clients were issuing copies of the work to the public (section 18).

In her judgement in November 2010, the judge agreed with the NLA’s interpretation that by clicking on a link Meltwater’s clients are copying copyright material as the content is copied onto the computer’s memory. This means that the judge decided the NLA could charge Meltwater’s clients for a licence.

The CDPA allows for temporary copying of copyright material with these conditions: (i) the act must be temporary (ii) it must be transient or incidental (iii) it must be an integral and essential part of the technological process (iv) the sole purpose of the process must be to enable a transmission network between third parties by an intermediary or the lawful use of the work or protected subject matter (v) the act must have no independent economic significance (vi) the act of making the temporary and transient copy must not exceed what is necessary for the proper completion of the technological process (vii) the storage and deletion must not be dependent on human intervention; it must be automated [2]

The judge decided that Meltwater’s clients would need the copyright holder’s permission to copy the newspapers’ online content to their computers’ memory and that “making the copy does have an independent economic significance as the copy is the very product for which the End Users are paying Meltwater...The exception cannot have been intended to legitimise all copies made in the course of browsing or users would be permitted to watch pirated films and listen to pirated music.” [1]

Meltwater lost their first appeal in July 2011.[3] On 11th February 2013, they will appeal to the Supreme Court on the issue of whether “the copies created when accessing a web page [are] exempt from copyright protection by reason of the temporary copies exception provided by s.28A of the CDPA.” [4]

There is a difference in opinion between the parties in the case as to the consequences of the rulings. Meltwater and its trade association the PRCA argue "it means that all non-private browsing of news content made freely available on the Internet will infringe copyright if it is done without a rightsholder licence." [5] The NLA thinks this is misleading: "The new licences only cover media monitoring companies, whose business model relies on charging for forwarding links using headlines and/or text extracts, and their end users. Google has a different business model to this. Companies systematically forwarding links sourced directly or through a free aggregator such as Google, within their business, should be licensed...Individual users need not worry: the NLA and its publishers encourage the sharing of links by individuals reading online newspapers." [6]

National Newspapers of Ireland

National Newspapers of Ireland (NNI), a representative body for Irish newspapers (including the Irish / Northern Irish editions of UK papers such as The Sun and Daily Mail) claimed in 2012 that links to pages on their websites are their copyright and must be licensed through Newspaper Licensing Ireland (a single link being €300).[7][8][9]


On 4th January 2013, National Newspapers of Ireland issued a press release to "clarify the NNI's position."

Key quotes from the press release:

  • "the display and transmission of links does constitute an infringement of copyright"
  • "there is a distinction between the sending and receipt of links for personal use on the one hand and the sending and receipt of links for commercial purposes on the other"
  • "linking for personal use is part of how individuals communicate on-line and...our members have no issue with that"

The Irish Times (an NNI member), in a statement[10], says it "does not see links as copyrightable and will not attempt to impose any restrictions on the posting elsewhere on the Internet of mere URLs that refer to its content."

Incidents

Incidents where companies have attempted to assert control over the use of hyperlinks.

Links

References

  1. 1.0 1.1 The Newspaper Licensing Association vs Meltwater 2010
  2. Copyright, Designs and Patents Act 1988
  3. The Newspaper Licensing Association vs Meltwater 2011
  4. Public Relations Consultants Association Limited v The Newspaper Licensing Agency Limited and others
  5. Win or spin? The real story of the Copyright Tribunal
  6. http://www.mcgarrsolicitors.ie/2012/12/30/2012-the-year-irish-newspapers-tried-to-destroy-the-web/
  7. It Would Have To Be The Irish NewsPapers Trying Something Insanely Stupid Like Charging For Links To Websites. Forbes. 2013-01-03
  8. wikipedia: Newspaper_Licensing_Ireland#Threats_to_Women.E2.80.99s_Aid_charity
  9. Newspaper responds to copyright row, Irish Times, 2013-01-04