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The Newspaper Licensing Agency Ltd & Ors v Meltwater Holding BV & Ors [2010] EWHC 3099 (Ch) (26 November 2010)

The Newspaper Licensing Agency Ltd & Ors v Meltwater Holding BV & Ors [2010] EWHC 3099 (Ch) (26 November 2010)

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Published by garethdickson
Judgment of the High Court of England and Wales in The Newspaper Licensing Agency Ltd & Ors v Meltwater Holding BV & Ors [2010] EWHC 3099 (Ch), discussing whether a copyright license is required to click on a link to copyright material.
Judgment of the High Court of England and Wales in The Newspaper Licensing Agency Ltd & Ors v Meltwater Holding BV & Ors [2010] EWHC 3099 (Ch), discussing whether a copyright license is required to click on a link to copyright material.

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Published by: garethdickson on Mar 20, 2011
Copyright:Attribution Non-commercial


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Neutral Citation Number: [2010] EWHC 3099 (Ch)
Case No: HC10C01718
Royal Courts of JusticeStrand, London, WC2A 2LLDate: 26/11/2010
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Robert Howe QC and Edmund Cullen
(instructed by
Berwin Leighton Paisner LLP
) for the
ClaimantsMichael Silverleaf QC and Andrew Lykiardopoulos
(instructed by
Baker & McKenzieLLP
) for the
Third Defendant
 Hearing dates: 9, 10, and 12 November 2010- - - - - - - - - - - - - - - - - - - - -
Mrs Justice Proudman:Background
The first claimant, the Newspaper Licensing Agency Limited (“NLA”) is a companyformed to manage the intellectual property rights of its members by licensing, andcollecting the licensing fees for, making copies of newspaper content. The other claimants (“the Publishers”) are publishers of national newspapers and areshareholder members of NLA. NLA was formed in 1995, primarily with a view tolicensing press cuttings agencies to make copies of newspaper articles to send to their clients and to license the clients to make their own copies. The NLA is a licensingbody within the meaning of s 116(2) of the Copyright Designs and Patents Act 1988(“CDPA”).
NLA v. Meltwater and PRCA
The NLA has promulgated various licensing schemes. It is for the Copyright Tribunal(“the Tribunal”) to determine the resonableness of the terms of any such schemes onthe reference of a recipient.3.
The first defendant is the Dutch parent company of a multi-national group and thesecond defendant is its UK subsidiary. I shall collectively refer to them as“Meltwater”. They provide a commercial media monitoring service called“Meltwater News” to business customers. That service is provided on-line only. Theaction has been stayed against Meltwater in the circumstances I shall mention.4.
The third defendant Public Relations Consultants Association Limited (“PRCA”) is anincorporated professional association which represents the interests of its memberswho are UK public relations providers using the Meltwater News service.5.
Because of the proliferation of on-line media monitoring services the NLA hasrecently promulgated two new licensing schemes for commercial users of suchservices. One, taking effect from 1 September 2009, is to license media monitoringorganisations, and the other, taking effect from 1 January 2010, is to license thosewho receive and use their services.6.
The issue I have to determine is whether PRCA and its members (“the End Users”)require a licence from the claimants in order lawfully to receive and use Meltwater News. Such a licence is known as a Web End-User Licence (“WEUL”). Although Ihave defined PRCA and its members as the End Users they are not necessarily theultimate users of the service in the sense that members (at any rate those memberswho are not in-house consultants) obtain the information from Meltwater News for external clients.7.
There was some evidence tending to show that emails received from Meltwater containing Meltwater News are sometimes forwarded to clients. At the time Mr Glittenberg (a founder and director of Meltwater) made his statement there were twoforward functions enabling the text extracts to be forwarded to third parties via theMeltwater website. However the ‘share’ function now provided has been modified sothat only the headline can be forwarded, thus limiting the scope of the sharedinformation. Mr Glittenberg said that forwarding the whole text extract is contrary toMeltwater’s terms and conditions, although it is technologically impossible to preventthe forwarding of an email. Mr Silverleaf QC submitted on behalf of PRCA that I hadto make findings on the basis of simple receipt by PRCA’s members.8.
Mr Silverleaf pointed out that para 67.2 of NLA’s pleading seeks a declaration that,“the PRCA and/or its members require a licence or consentfrom the NLA and/or the Publishers in order lawfully to receiveand/or use the Meltwater News Service”,He asserts that the focus and scope of the claim is whether receipt of the service,rather than communicating the results to others, is a potential breach of copyright. Itseems to me that the word ‘use’ goes further than that, and it seems to be accepted thatsome at least of PRCA’s members share the contents of Meltwater News with externalclients although there was little or no hard evidence on this subject.
NLA v. Meltwater and PRCA
Despite questions from the Court it has not been made clear whether it is still allegedthat PRCA itself requires a licence. PRCA says it is not a customer of Meltwater anddoes not receive Meltwater News. Mr Howe QC says it does not matter very muchand I ought to concentrate on the position of PRCA’s members.10.
Meltwater does not currently have a licence and was offered a Web Database Licence(“WDL”) by NLA under which Meltwater would be licensed to carry out itsmonitoring activities.11.
Under CDPA the Tribunal exercises control over licensing bodies in accordance withits jurisdiction set out in s. 149 CDPA. Under s. 118 and 119, the terms of any new oexisting licensing scheme can be referred to the Tribunal by a potential licensee (or under s. 121 by a person who has been refused a licence) for adjudication on whether those terms are reasonable in the circumstances of the case. A licensor cannot makesuch a reference.12.
On 16 December 2009 Meltwater commenced a reference under s. 119, challenging anumber of aspects of the WDL as unreasonable. PRCA intervened in the reference onbehalf of its members, adopting some of Meltwater’s objections in relation to theWEUL. Meltwater and PRCA make common cause and are represented by the samelawyers. In the Tribunal PRCA has formally appointed Meltwater to act as its agent.13.
Importantly, Meltwater asserts that it does not require a licence at all as its activitiesdo not infringe the Publishers’ copyright. However Meltwater took the position thatnotwithstanding this contention it would enter into the WDL on such terms that theTribunal determined were reasonable. Both Meltwater and PRCA deny that PRCA’smembers require WEULs.14.
Pausing there I make two observations about the effect of CDPA. First, it is commonground that under s. 129 the Tribunal must exercise its powers to ensure that there isno unreasonable discrimination between licensees or prospective licensees under anyproposed scheme, ensuring a level playing field and avoiding the abuse potentiallyinherent in the dominant position held by a collective licensing body.15.
Secondly, there is a dispute between the parties as to the effect of an award once it ismade. PRCA asserts that under s. 123 CDPA the person obtaining the licence isdeemed to be in the same position as regards infringement as if he had at all materialtimes after the making of the reference, not the Order, been the holder of the licence.In other words, it is asserted that the licence is backdated to the start of the referenceso that the licensee cannot be sued for infringement in respective of any subsequentperiod. NLA says that is not the case save in the restricted circumstances provided for by s. 123 (3). That is where the Tribunal has exercised its statutory power to backdatethe effect of its order only where it has ordered a variation in the charges payableunder the scheme. I do not find it necessary to adjudicate on that question of statutoryconstruction.16.
The terms of any licence are a matter for the Tribunal. The Tribunal refused to order (as sought by NLA) that it should not entertain Meltwater’s reference to the extentthat it related to the existence and infringement of copyright. However the Tribunalobserved that the question of whether the End Users required a licence was one whichrequired “careful thought”. There was a suggestion in the judgment that the Tribunal

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