In The Newspaper Licensing Agency Ltd and Others v Meltwater Holding BV and Others  EWHC 3099 (Ch) (26 Nov 2010) Mrs. Justice Proudman had to decide whether the customers of a commercial media monitoring service needed a licence from the copyright licensing agency of the British newspaper industry to receive emailed reports containing data that had been extracted by the monitoring service from the websites of British newspapers. The parties to this action were
· the leading British newspaper publishers and the Newspaper Licensing Agency, their copyright licensing agency (“the publishers”);
· Meltwater Holding BV and its British subsidiary the companies providing newspaper monitoring service (“Meltwater”) and
· the trade association of the companies that used Meltwater’s services (“the end-users”).
By this action, the publishers sought a declaration that the end-users require a licence or consent from the publishers in order lawfully to receive and/or use the Meltwater News Service.
The Commercial Background
It was common ground that Meltwater monitored a wide range of websites, including those of the publishers, using so-called "spider" programs to "scrape" or "read" the content of the publishers’ websites. Its programs then create an index which records the position of every word in every article on every such website. Meltwater's customer may select particular search terms and Meltwater will then provide a monitoring report with details of every article containing the search term published within a defined period such as the preceding day or the last 7 days. Meltwater News is then either emailed to the customer or the customer is given the facility to access it at Meltwater's website. Each report contains:
· a hyperlink to each relevant article on the publisher's website;
· the opening words of the article after the headline and
· an extract from the article showing the context in which the search term appears reproducing the search term and some words immediately preceding and following it.
The judge observed that the publishers feel a strong grievance against Meltwater's perceived commercial exploitation of their websites. The newspapers have devoted very substantial resources in developing their websites and to the selection, arrangement and presentation of the material on them. Meltwater is making millions of pounds from its own activities which include 'scraping' the Publishers' websites for information for its own commercial gain. On the other hand, the Publishers have arrangements or understandings with certain free media monitoring services such as Google News and Google Alerts whereby those services are currently licensed or otherwise permitted. It would apparently be open to the end users to use such free services, or indeed a general search engine, instead of a paid media monitoring service without (currently at any rate) encountering opposition from the publishers. That is so even though the end users may be using such services for their own commercial purposes.
Her ladyship found that Meltwater’s end-users do need a licence lawfully to receive that company’s emails.
She found first that the mere act of receiving an email requires reproduction of matter emanating from the newspapers’ websites. That is actually quite a useful finding because it confirms the power of website owners to set conditions on access to their websites (see my article on “Website Terms and Conditions” on the NIPC website on 7 Nov 2010).
Next, Mrs. Justice Proudman held that newspaper headlines can be copyright works and it is here that she made some new law. It had previously been held that copyright could not subsist in
• corporate names such as “Exxon” in Exxon Corp. v Exxon Insurance Consultants International Ltd.  RPC 69,
• advertising slogans and such as “Youthful appearance is a social necessity, not a luxury” in Sinanide v La Maison Kosmeo (1928) 139 LT 365, and
• book titles such as “Splendid Misery” in Dicks v Yates  18 ChD 76
because they were too slight to merit legal protection. However, it has to be stressed that the late Sir Hugh Laddie and his fellow authors of the third edition of The Modern Law of Copyright and Designs had cautioned at paragraph 3.62 that it should not be assumed that an advertising slogan or title is incapable of protection as a matter of principle. In Meltwater the judge had the evidence of the Chief Operating Officer of The Daily Mail that:
"• The headlines are often striking and substantial, both in terms of content and in terms of length.
• They are not usually written by the journalists who write the underlying articles but by editorial staff whose specific functions include the composition of headlines.
• The ability to compose a headline is a valuable and discrete skill and courses exist to teach it.
• Headlines require skill in order to fulfil the objective of capturing the reader's attention and inducing them to read the article. Thus a headline frequently has some emotional or sentimental 'hook', it may contain a pun, it may summarise the content of the article to which it relates.
• The process of final selection of a headline is separate from the selection of the article. Often a number of options will be proposed and the decision will be taken by a senior editor. Occasionally the article will be tailored to fit the headline.”
The judge relied on that testimony to reach her conclusion.
Less controversially, applying the English authorities as well as the Court of Justice of the European Union’s decision in Case C-5/08 Infopaq International v. Danske Dagblades Forening  FSR 495, her ladyship held that the text extracts of Meltwater’s reports could be substantial parts of an article on the publisher’s website. However, she refused to find that Meltwater’s activities infringed copyright on so far as a website was a database or that accessing an article through Meltwater’s links rather than the publisher’s home page could infringe. Having found that reproduction of a headline and text required a licence the judge considered the temporary copying and fair dealing exceptions under s.28A and s.30 of the Copyright, Designs and Patents Act 1988 but concluded that neither could apply.
Explaining why the government had commissioned Professor Hargreaves to review our intellectual property law, Baroness Willcox, Minister of Intellectual Property, observed:
"An IP system created in the era of paper and pen may not fit the age of broadband and satellites. We must ensure it meets the needs of the digital age."
This is one of many examples of the increasing difficulties that arise in the digital economy and it is one of the reasons I am confident of a boom in intellectual property work despite the scepticism of one of my beloved legal luddites (see “You may as well sell fridges to the Eskimos” NIPC website 26 Nov 2010). If anyone wants to discuss this case or has a similar or related case, he or she should not hesitate to call me on 0800 862 0055 or fill in the “Can we help you form?”