Headlines and extracts from newspaper articles may be protected by copyright

This article was included in the spring 2011 issue of snIPpets - the intellectual property newsletter.

The High Court has ruled (in the case of The Newspaper Licensing Agency Limited & Others v Meltwater Holdings BV & Others [2010] EWHC 3099) that business customers of Meltwater, which provides a commercial media monitoring service, must obtain a licence from the Newspaper Licensing Agency (NLA). This is a significant decision because it demonstrates the practical impact of a 2009 ruling of the Court of Justice of the European Union ("CJEU") in Infopaq International v Danske Dagblades Forening Case C-5/08 on the test of quality when deciding whether a substantial amount of a work has been copied. 

The NLA manages intellectual property rights for its members by licensing the right to make copies of newspaper content. The case concerned an online media monitoring service operated by Meltwater known as Meltwater News. When operating this service, Meltwater scrapes websites of newspaper publishers to obtain details of articles using keywords which are relevant to its customers’ businesses. Meltwater then provides to its customers:

• a hyperlink to each article, citing the headline from the article. A click on the link takes the customer to the article as it appears on the newspaper website;
• opening words of the article; and
• an extract from the article showing the context in which the keywords appear. 

In total the extracts provided in Meltwater News do not exceed 256 characters. 

Meltwater is in separate licensing discussions with NLA regarding its use of content from publishers who are NLA members. The receipt of Meltwater News involves copying by the end users on their computers of material which has already been reproduced by Meltwater. Therefore, the issue for the High Court was whether Meltwater's customers required a NLA licence to receive and use Meltwater News in addition to the licence fee already payable by Meltwater. 

In the Infopaq case, the CJEU held that an eleven word extract from a newspaper article had sufficient quantity to warrant copyright protection provided that it includes an expression of the intellectual creation of the author. In the recent High Court case, there was evidence than headlines are often written by editorial staff trained in writing headlines, rather than by the author of the article, as they involve considerable skill to capture the reader's attention as well as informing the reader. Applying the Infopaq ruling to these facts, the High Court held that some headlines were capable of being literary works, whether in their own right or as part of the articles to which they relate. 

In the judge's view, the effect of Infopaq is that even a small amount of the original article may be protected by copyright "if it demonstrates the stamp of individuality reflective of the creation of the author or authors of the article". 

End users who receive an e-mail containing Meltwater News, or who view Meltwater News via Meltwater's website on screen, will make a copy of the works on their computers and thus infringe copyright unless they are licensed by NLA to do so. Infringement is more likely that not to occur when an end user clicks on a hyperlink which causes a copy of the newspaper article to appear on screen (although the Judge commented that the parties’ submissions on this issue were not presented as clearly as she would have liked), and there will also be infringement where an end user forwards a headline link to a third party, by issuing a copy to the public.

However, NLA did not succeed in their claim for infringement of database copyright. Although it could be argued that a website is capable of being a database, the acts of infringement alleged in this case related to the content of the articles. There was no suggestion that Meltwater had copied the arrangement or structure of any websites as a database, and so the claim for infringement of database copyright failed. 

The Court held that none of the exceptions to copyright infringement applied, including the temporary copying defence. In the court's view, this exception is solely concerned with incidental and intermediate copying. Any copying which is "consumption of the work" requires permission of the copyright holder. The court also made clear that a person making a copy of a webpage on their computer screen will not have a defence simply because they had been browsing.