The Newspaper Licensing Agency Ltd v Meltwater Holding BV
| Jurisdiction | England & Wales |
| Judge | Lord Justice Jackson,Lord Justice Elias |
| Judgment Date | 27 July 2011 |
| Neutral Citation | [2011] EWCA Civ 890 |
| Docket Number | Case No: A3/2010/2888/CHANF |
| Court | Court of Appeal (Civil Division) |
| Date | 27 July 2011 |
[2011] EWCA Civ 890
The Chancellor of the High Court
Lord Justice Jackson
and
Lord Justice Elias
Case No: A3/2010/2888/CHANF
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE CHANCERY DIVISION
Mrs Justice Proudman
Royal Courts of Justice
Strand, London, WC2A 2LL
Robert Howe QC and Edmund Cullen (instructed by Berwin Leighton Paisner LLP) for the Claimants / Respondents
Michael Silverleaf QC and Andrew Lykiardopoulos (instructed by Baker & McKenzie LLP) for the Defendants / Appellants
Hearing dates: 15—16 June 2011
The Chancellor
Introduction
The second to seventh claimants ("the Publishers") are the publishers of national newspapers. They are members of the first claimant The Newspaper Licencing Agency Ltd ("NLA"). NLA is, as its name suggests, the manager of the intellectual property rights of its members and a licensing body for the purposes of s116(2) Copyright Designs and Patents Act 1988 (" CDPA"). From time to time, most recently in September and December 2009, it promulgates schemes authorising the use of its members' online publications. The first defendant Meltwater Holdings BV is the Dutch holding company of a group of companies carrying on the business of a commercial media monitoring organisation ("MMO") called Meltwater News. The second defendant, Meltwater News UK Ltd, is its UK subsidiary through which the group's business is conducted in the UK. The third defendant, Public Relations Consultants Association Ltd ("PRCA") is an association formed to represent the interests of public relations consultants carrying on business in the UK. Its members are subscribers to Meltwater News and users of the services of Meltwater.
In broad terms the operations of Meltwater consist of monitoring media websites, including those of the Publishers, with a 'spider' computer programme so as to 'scrape' or read the contents of those sites. It creates an index of the position of every word in every article on all those sites. The purpose of this operation is to be able to identify for the benefit of its clients every reference within a defined period to a particular name, word or other search term, known as 'an agent', specified by its client. The result is then communicated to the client as Meltwater News by means of an email alert. The client may access its Meltwater News either by opening the email or visiting the Meltwater website. The relevant Meltwater News contains a reference to every use of the specified agent within the specified period and sets out (a) a hyperlink to each relevant article, (b) the headline from the article, (c) the opening words of the article after the headline and (d) an extract from the article showing the context in which the agent appears by reproducing the agent and some words immediately preceding and following it.
NLA promulgated a scheme, with an effective date of 1st September 2009, for licensing MMOs, such as Meltwater, the use of its members' websites by the grant of a Web Database Licence ("WDL"). It then promulgated another scheme, with an effective date of 1st January 2010 for licensing the use of its members' websites by end-users of the services of MMOs such as public relations consultants. Under the latter scheme the end-user obtained a Web End User Licence ("WEUL"). The terms of a WDL require the clients of the MMO to hold a WEUL. Meltwater contended that it did not require a WDL in order lawfully to carry on its business. In addition it maintained that the terms of the WDL were unreasonable and, on 16th December 2009, commenced a reference to the Copyright Tribunal under s.119 CDPA. On 28th January 2010 PRCA intervened therein on behalf of its members contending that its members do not require a WEUL in order lawfully to use Meltwater News.
Thus both Meltwater and PRCA are contending before the Tribunal, inter alia, that no infringement of copyright is committed by either Meltwater or an end-user not holding a WDL or WEUL respectively. It is common ground that the Tribunal has no jurisdiction to determine those questions. Accordingly, on 24th May 2010, NLA and the Publishers issued the claim form in this action against Meltwater and PRCA. They claim declarations that (1) Meltwater requires a licence or consent from NLA or the Publishers in order lawfully to provide Meltwater News, and (2) the members of PRCA require such a licence or consent in order lawfully to receive and/or use Meltwater News. Meltwater had agreed to take a WDL at the conclusion of the Tribunal reference, whether or not it was necessary to do so, in order lawfully to continue its Meltwater News Service whilst maintaining its reference to the Tribunal in relation to the terms. Accordingly, on 5th July 2010 Newey J stayed the action against Meltwater and directed an expedited trial of the action against PRCA.
That part of the action was heard by Proudman J on 9th, 10th and 12th November 2010. She gave judgment on 26th November 2010. For the reasons she then explained, which I shall describe in some detail later, she concluded that the members of PRCA require a licence from NLA or the Publishers in order lawfully to receive and/or use the Meltwater News Service provided by Meltwater. Her reasons for that conclusion may be summarised as follows:
(1) The headlines to the various articles reproduced in Meltwater News are capable of being literary works independently of the article to which they relate.
(2) The extracts from the articles reproduced in Meltwater News with or without the headline to that article are capable of being a substantial part of the literary work consisting of the article as a whole.
(3) Accordingly the copies made by the end-user's computer of (a) Meltwater News (i) on receipt of the email from Meltwater, (ii) opening that email, (iii) accessing the Meltwater website by clicking on the link to the article and (b) of the article itself when (iv) clicking on the link indicated by Meltwater News are and each of them is, prima facie, an infringement of the Publishers' copyright.
(4) No such copies are permitted (a) by s.28A CDPA dealing with temporary copies, or (b) as fair dealing within s.30 CDPA, or (c) by the Database Regulations.
(5) Accordingly, the end-user requires a licence from NLA or the Publishers, whether or not in the form of the WEUL in order lawfully to receive and use the Meltwater News Service.
PRCA, but not Meltwater, now appeals with the permission of the judge. It contends that the judge was wrong in relation to each of those issues.
At the forefront of their appeal PRCA contend that the conclusion of the judge, summarised in paragraph 5(5) above, must be wrong in law because it necessitates what they describe as double-licensing. Their starting point is the press clippings agency; whilst the agency requires a licence from the Publishers to make the 'hard' copies they supply to their clients, the latter do not require a licence to receive and read them. PRCA contend that in an online environment a licence to the provider of a service, Meltwater, must encompass the inevitable copies which will be made when that service is received and read by the end-user. In other words the provision and receipt of the service are but opposite sides of the same coin. They accept that one must be licensed but deny the right of the Publishers to insist that both are licensed. They contend that if that submission is accepted then it matters not if the judge correctly decided the issues I have summarised in paragraph 5(1) to (4) above. In addition PRCA maintain that if the double licensing contention is not well-founded then the judge was wrong in relation to each of those issues.
I am satisfied that the double-licensing argument, though put at the forefront of the argument of PRCA on this appeal, should, logically, be considered after, not before, I have dealt with each of the issues summarised in paragraph 5(1)-(4) above. Accordingly, I will, in due course, deal with all the issues summarised in paragraph 5 in the order in which I have set them out. First, it is necessary to explain the facts and the course of the proceedings in greater detail and to set out the relevant provisions of the CDPA and other legislation.
The Facts
I have sufficiently described the parties and the issues in the foregoing paragraphs. The appropriate starting point is the Publisher's website. Each Publisher has a website on which its publications may be found in digital form. It seeks to regulate the use to which those who access it put its publications by the terms and conditions it imposes and which are to be found on the website itself. The terms and conditions imposed by each Publisher state that (i) any end-user will be bound by such terms and conditions and (ii) an end-user is only permitted to access the website for personal and/or non-commercial use. There is no separate requirement to accept such terms and conditions as a condition of obtaining access to the website although access may be controlled by the use of pay or subscription walls.
It is not disputed that the operation of the Internet Protocol is such that when an end-user, whether Meltwater or its client, accesses a Publisher's website and any...
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