[pp.int.general] Fwd: [The IPKat] Tip of the iceberg: media monitoring and copyight licences

Thu Dec 2 21:50:49 CET 2010

speaking of media freedom and such.

---------- Forwarded message ----------
From: Jeremy <jjip at btinternet.com>
Date: 2 December 2010 17:50
Subject: [The IPKat] Tip of the iceberg: media monitoring and copyight
licences
To: ipkat_readers at googlegroups.com

<http://3.bp.blogspot.com/_CHG2GRbeET8/TPfOIpIV2OI/AAAAAAAAQ4s/cwlTFZVPkqU/s1600/catice.jpg>
*Media monitor cuts no ice with Kats
<http://astore.amazon.co.uk/kitchen.dining.outlet.online.shop-21/detail/B0033WSJBO>
...* *Do you know where your web end is?*  If not, be warned -- you may need
a licence for it.  In *Newspaper Licensing Agency Ltd and others v Meltwater
Holding BV and other companies* *[2010] EWHC 3099
(Ch),<http://www.bailii.org/ew/cases/EWHC/Ch/2010/3099.html>
* Mrs Justice Proudman (Chancery Division, England and Wales) last week gave
a keenly-awaited ruling to the effect that the use of a media monitoring
service which provided customers with copies of headlines and extracts from
articles on newspaper websites infringed the copyright in those newspapers
if the customer didn't have a "web end-user licence" to use and receive
those headlines and extracts from that media monitoring service.

In this action the claimants (a number of newspaper publishers and the NLA,
a company that managed some of their intellectual property rights) sought a
declaration that the defendants (the Meltwater media monitoring service and
the Public Relations Consultants Association Limited -- PRCA --a
professional association representing public relations providers) each
needed a copyright licence in order lawfully to produce and/or use copies of
the claimants' newspaper content.   The media monitoring service consisted
of the supply of reports which included the headline, opening text and an
extract from articles which matched search terms selected by the customer.
Whether these reports were sent by email to the PRCA or downloaded from
Meltwater's website, they inevitably ended up being copied into the memory
of PRCA's computer.

In these proceedings the judge was asked to rule on the following issues:

(i) is a newspaper headline capable of being a free-standing original
literary work?

(ii) is the text extract constituted a "substantial part" of the article as
a literary work?

(iii) do the PRCA and its members need a web end-user licence from the NLA
or its members in order to lawfully use and receive Meltwater's service?

Mrs Justice Proudman first identified the relevant principle of law, this
being the test laid out by the Court of Justice of the European Union in *Case
C-5/08<http://the1709blog.blogspot.com/2009/07/top-court-rules-that-printing-isnt.html>
* *Infopaq International A/S v Danske Dagblades Forening: *no
distinction should be be made between part of an article and the whole,
provided that the part contained elements which were the expression of the
author's intellectual creation. The Information Society Directive (2001/29),
which governed the extraction of works, did not itself make reference to the
need for the extraction to be of a "substantial part" of the copied work.
Rather, the Directive (as *Infopaq *explained) made it clear that *
originality* -- not *substantiality * -- was the test to be applied to the
part extracted.  On this basis the judge attacked the questions before them
and answered them as follows:

(i) On evidence from the newspaper publishers that the creation of headlines
involved considerable skill, some headlines were indeed capable of being
independent literary works. However, even those that were not independent
legal works still formed part of the articles to which they related.

(ii) As to whether the text extracts constituted a substantial part of the
articles, what is decisive is the quality of the extracted part and the
level of the author's skill and labour which the copier has appropriated,
not the amount extracted. In *Infopaq *the Court of Justice found that
copying an extract of 11 consecutive words from an article would be
partial reproduction in part for the purposes of Article 2 of the InfoSoc
Directive -- so long as those words had the necessary quality of
originality. This does not require the court to conduct some sort of
assessment of whether the extract is novel or artistically worthwhile on its
own, since that would be treating the extract as if it was itself a literary
work. In these proceedings, many of the text extracts did contain elements
that could be said to be the expression of the intellectual creation of the
author of the article as a whole, and which thus infringed.

(ii) Since customers of the media monitoring service made copies of the
headline and text extract when viewing or accessing Meltwater's report,
there was a prima facie copyright infringement. There were no fair dealing
or other defences either, since the sole reason why the extracts were copied
was to see if the news items were of any further use or not.

The IPKat says, this ruling is an inevitable consequence of the fact that
copyright infringement is broken down into so many restricted acts which can
constitute infringement even if they closely follow the performance of a
permitted act by a licensed person -- but that is in the nature of the right
itself.  And while he can see that customers may feel peeved that they need
a licence even to have their own copy of extracts which are made under
licence themselves and which they've paid for, he can also see why newspaper
proprietors are desperate to turn opportunities such as this into a sort of
'last chance saloon' for coaxing a little more income out of a news
provision service that is increasingly harder to finance and run
profitably.  Merpel says, I bet within a few years the availability of
increasingly improved search engines and better techniques for harnessing
them will lead many current customers of media monitoring services to do
their owb self-monitoring.
Neat analysis on the 1709 Blog
*here<http://the1709blog.blogspot.com/2010/11/how-originality-is-reinventing-itself.html>
*
Press Gazette report
*here<http://www.pressgazette.co.uk/story.asp?sectioncode=1&storycode=46356&c=1>
*
Appeal to Court of Appeal under consideration
*here<http://www.prweek.com/uk/news/1044344/PRCA-considers-appeal-against-High-Court-ruling-NLA-web-link-payments/>
*
How cats drink water
*here<http://topnews.us/content/228720-scientists-elaborate-physics-behind-how-cats-drink-water-without-getting-wet>
*

--
Posted By Jeremy to The
IPKat<http://ipkitten.blogspot.com/2010/12/tip-of-iceberg-media-monitoring-and.html>on
12/02/2010 04:50:00 PM

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