Court of Appeal upholds Proudman's Decision in Meltwater

"King's Moll Reno'd in Wolsey's Home Town." Thus an American newspaper reported the divorce of the Duchess of Windsor from second husband Ernest Aldrich Simpson at Ipswich Assizes. This witty pithy sentence imported a new verb into Cisatlantic English, namely "to Reno" for which there is still no equivalent, alluded to the family law of the state of Nevada and Tudor history. Yes, Henry VIII's first minister, the builder of Hampton Court, was indeed a butcher's boy from the county town of Suffolk. If this headline does not deserve copyright protection I don't know what does.

Mrs. Justice Proudman certainly thought so as I reported in "Newspaper Licensing: The Newspaper Licensing Agency Ltd. v Meltwater Holding BV and Others" on 28 Nov 2010. But the Public Relations Consulting Association Ltd. who were the effective defendants in the Meltwater case argued that she was wrong in their appeal (The Newspaper Licensing Agency Ltd. v Meltwater Holding BV and others [2011] EWCA Civ 890 (27 July 2011), The Chancellor of the High Court and Lords Justices Jackson and Elias agreed with her ladyship describing her conclusion as "unassailable" at paragraph [22].

Similarly, the lordships dealt with the contention that a 256 character digest was too short and too factual to amount to a substantial part of a newspaper article. The Chancellor said at [28]:

"I do not accept these criticisms. Each time Meltwater produces an edition of its news for a client, depending on the search term or agent, a large number of extracts are taken from a variety of publications, in some cases several from the same article. Given the principles to be applied it seems to me to be inevitable that some of them will constitute a substantial part of the original so as, when copied by the client, prima facie, to amount to an infringement of copyright in the original literary work."

The Court of Appeal also agreed that not of the exceptions relied on by the Consultants could apply.

The main point of the appeal, however, was that the judge's decision necessitated "double licensing", They drew an analogy to subscribers to a clipping agency who do not require a licence to read extracts from the claimant's columns in hard copy. The flaw in their argument is that reading does not require reproduction whereas viewing in a browser does, I discussed the point in detail in my previous case note because it underpins the right of a website owner to control linking and downloading of material from his or her website. That is one of the reason why this case is so significant and why pace my dear friend Steve Kuncewicz this decision is to be welcomed. As the Chancellor put it at paragraph [47]

"The copies created on the end-user's computer are the consequence of the end-user opening the email containing Meltwater News, searching the Meltwater website or accessing the Publisher's website by clicking on the link provided by Meltwater. They are not the same copies as those sent by Meltwater. PRCA admitted as much in its defence and the agreed statement of facts. For these reasons I consider that the double licensing contention is unmaintainable."

The only ground upon which the Court of Appeal differed from the trial judge was that her declaration went further than her findings or the Court of Appeal's conclusions warranted. It was not the case that every recipient or user of Meltwater News would inevitably infringe the copyright so as in all cases to require a licence or consent from the publisher. There may be some cases in which neither the headline nor the 'scrapings' would constitute a copyright work or a substantial part of a copyright work. A licence would not be required in such a case but there cannot be many of them. Accordingly the Court of Appeal modified the declaration by inserting the words "most if not all" before the words "members of the PRCA".

In my case note I mentioned the commissioning of the Hargreaves Report. I have discussed the report in some detail in "IP Policy: Does Hargreaves say Anything New" on 24 June 2011. Shortly after the Court of Appeal's judgment Dr Vince Cable announced in a letter to stakeholders dated 3 Aug 2011 that HM Government accepted all Professor Hargreaves's recommendations, In a press release on the same day the Meltwater Group seemed to draw solace from that announcement. I am not sure why because I have read the government's response and Hargreaves very carefully and can find nothing that would reverse the finding of the Court of Appeal and over 100 years of case law.

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