UK Court of Appeal confirms end-users need license to access on-line news services

On 27 July 2011 the English Court of Appeal confirmed the High Court’s controversial decision in the Meltwater case, which covered the issue of whether users of a media monitoring service need a “Web End User License” in order to receive and use newspapers’ titles, headlines and extracts from such newspaper company.

In this action, the claimants – various newspaper publishers and a company managing their right – claimed that customers of Meltwater, a media monitoring company, infringed the newspapers’ copyrights any time they accessed Meltwater’s emailed reports (including headlines, opening texts, extracts and links to various newspaper sources that matched the keywords selected by the customers) or downloaded these reports from Meltwater’s website. Meltwater’s conduct was not at issue as it had agreed to enter into a Web Database License scheme with the Newspaper Licensing Agency.

The Court was asked to rule on the following issues:

  1. Is a newspaper headline capable of being considered an independent “literary work” from the article to which it relates?
  2. Are the extracts from the articles reproduced in Meltwater’s news report capable of being considered a substantial part of the literary work as a whole?
  3. Do the customers of a media monitoring agency need a Web End User License in order to lawfully use and receive the news to which they have subscribed?

Confirming the High Court findings, the UK Court of Appeal held, in line with the ECJ’sInfopaq case, that headlines and extracts of an article are entitled to copyright protection – independently from the article to which they relate – as soon as they are the expression of the intellectual creation of their author. Moreover, according to the court, “originality,” instead of “substantiality,” should be the test for assessing copyright protection.

The court also affirmed the findings of the High Court on the third controversial question; the end user needs a second license, in addition to the first license already entered into by the media monitoring company, to access these newspaper articles. The court reasoned that since the customers of the media monitoring service copy the headlines and relevant copyrighted extracts of these articles any time they view or access Meltwater’s reports, and such use is neither consented to by the rights holders nor covered by a fair dealing or other type of defense, the High Court was right in finding a prima facie copyright infringement. [Béatrice Martinet Farano]