Headlines, Article Extracts are Sometimes Copyrightable

(IPRinfo 4/2011)

Tanja Liljeström
Researcher, IPR University Center

Headlines and extracts can be protected as independent literary works, regardless of whether they were part of another work.

Meltwater News is a media monitoring service that indexes and links to articles containing names, words or terms specified by its subscribers (mainly public relations consultants), and then provides its subscribers access to those articles via either the Meltwater website or email. What the subscriber sees on Meltwater News is hyperlinks to the articles, the article headlines, the opening words of the article, and an extract from the article where the search term appears.

The articles are ”scraped” from the websites of online publications, the use of which is governed by the terms and conditions of each website. In this case, the terms specified that end users were only permitted to make personal and/or non-commercial use of the websites.

The Newspaper Licensing Agency (NLA) represents its member publications in providing licenses for commercial use: a Web Database License (WDL) for media monitoring organizations (which authorizes scraping and distribution), and a Web End User License (WEUL) for the end users of the media monitoring services (which authorizes reproduction of the content received). Neither Meltwater News nor its subscribers were licensed by NLA.

Do end users need a license?
Meltwater argued that its activities did not infringe NLA’s members’ copyrights, but nevertheless agreed to enter into a WDL. Therefore, the question before the court was whether Meltwater News subscribers, represented here by PR consultants’ association PRCA, also needed a WEUL. The case turned on whether the article headlines and/or the extracts provided by Meltwater News were capable of being protected by copyright and whether the subscribers infringed on any of the exclusive rights of NLA members by accessing them.

NLA et al claimed that headlines and extracts could be copyrightable literary works, and that the exclusive right of reproduction was infringed when Meltwater News subscribers accessed them, which caused copies to be created on their computers. The same would apply to articles accessed via hyperlinks. PRCA argued that copyright could not subsist in headlines or text extracts independent of the articles of which they are part, and that the parts copied were not substantial enough for the exclusive right of reproduction to be infringed. PRCA also invoked the exceptions for temporary copies and fair dealing (which permits use for the purposes of news reporting, criticism and review).

Not a question of fair dealing
The High Court Chancery Division found for NLA. Based in the CJEU’s Infopaq judgment (Case C-5/08 Infopaq International A/S v Danske Dagblades Forening), the court held that headlines and extracts could be protected as independent literary works, regardless of whether they were part of another work. The court noted that the criterion for copyright protection is originality, in the sense that the expression which is protected originates from the author. As for the reproduction of text extracts, the court held that the decisive factor was the quality of the extract and not the quantity. Thus, text extracts could constitute substantial parts of the original article so as to infringe the right of reproduction when copied.

The court found that the purpose for which the subscribers used the articles and parts thereof was to ascertain whether or not the information was relevant to their clients (in other words, to read them). Since this use did not qualify as news reporting or criticism/review, the fair dealing defense was rejected. The temporary copying defense was also rejected as the copies made while accessing the content were not considered essential and integral parts of the technological process of transmitting them.

Online world needs a ”license to read”
Therefore, Meltwater News subscribers would commit prima facie infringement by accessing the content distributed by Meltwater News without a license authorizing them to do so.

On appeal, the Court of Appeal (Civil Division) affirmed, but found that the lower court had gone too far in declaring that subscribers would infringe each time they accessed any content from Meltwater News without a license. The Court of Appeal held that not all headlines or text extracts would necessarily constitute copyrighted works or substantial parts thereof. Nevertheless, since some of the content would be protected by copyright, a license was needed.

This ruling once again highlights the difference between the online and ”hard copy” worlds as regards the acts relevant to copyright infringement. While subscribers to a media clippings service did not need a ”license to read” hard copies they may receive, reading the same material on a computer necessarily involves copying, which requires the consent of the copyright owner.

Also, parts of works which, in the hard copy world, would be considered economically insignificant, may have more value as objects of licensing in the online world. Finally, the case serves as a reminder that, although many online news sites remain free to access, anyone contemplating building a commercial service based on such access is well advised to read the terms and conditions applicable.

The Newspaper Licensing Agency Ltd & Ors v Meltwater Holding BV & Ors [2011] EWCA Civ 890 (27 July 2011)