Tuesday 20 March 2012

Darren Olivier

Copyright: Media Monitoring Organisations face the prospect of paying copyright fees for newspaper content

Business Day has reported here on a “new” licence which will “force” media monitoring organisations to pay copyright fees on their use of copyright-protected content from newspapers. Swiss-based South African IP lawyer André Myburgh of Lenz Caemmerer says that the obligation on the part of media monitoring organisations (known as press clipping agencies before the advent of the internet) to obtain publishers’ consent is not new at all, and reports on a series of recent cases in the United Kingdom and on what it means for the licensing of newspaper content in South Africa.

"In the United Kingdom, eight newspaper publishers formed The Newspaper Licensing Agency Limited (a public company, known by its acronym ‘NLA’) in 1995 and mandated it to license the use of their content. Traditionally, newspaper publishers made their money from selling their newspapers and advertising, so the NLA was formed to exploit a secondary market of licensing reproductions of their content by media monitoring organisations (MMOs) and their customers. In addition to mandates from its founder members, the NLA now has mandates from newspaper publishers across the UK and it can also license content from overseas newspapers by virtue of bilateral agreements which it has with other reproduction rights organisations.

The structure of the NLA’s licences required not only the MMO to be licensed, but also its customers. One MMO, Meltwater, objected to this licensing scheme and referred it to the Copyright Tribunal. The Tribunal stayed its proceedings pending the outcome of a decision of the High Court whether the customers would, by using Meltwater’s service, be making reproductions of copyright-protected material. Following the decision of the European Court of Justice in the Infopaq case (which was also a dispute between newspaper publishers and a MMO) in which it was held that there could be copyright in an extract of 11 words from a newspaper article, the UK Court of Appeals held that there could be copyright in a newspaper headline as well and, as a result, due to the way in which customers would have to replicate the electronic copies received from the Meltwater service on their own computers, they would require a licence from the copyright owners, who were represented by the NLA. This decision is currently on appeal to the Supreme Court.

For those readers who may be interested in the technical details and the legal underpinning of these decisions, the Infopaq judgment can be found here.

After the decision by the Court of Appeal, the matter went back to the Copyright Tribunal, whose decision was handed down less than a month ago. The main part of the decision involves a complex analysis of the revenue models available in order to identify a fair share of the revenue that will go to the NLA, the end result of which appears to leave the NLA with about 8% of Meltwater’s revenue. The decision also deals with the reasonableness, or not, of some contractual terms found in licenses and the issue of territoriality. The Tribunal’s decision can be found here.

In South Africa, the obligation to obtain the copyright holder’s consent for making a reproduction of his or her copyright-protected literary work is as new as the first copyright legislation in this country, which is nearly 100 years old, not counting the copyright legislation that existed before that in the various colonies. What is new (as reported in Business Day) is the drive to regularise the reproduction of newspaper content by MMOs and their customers . But insisting that any business model that relies on the use of copyright-protected content of others under licence is hardly new; it is nothing else than putting into practice a basic and longstanding requirement of copyright law which needs to be respected.

Newspaper publishers could deal with copyright clearances themselves, but it is more usual for them to appoint reproduction rights organisations, such as the NLA in the UK, to do so on their behalf. Most reproduction rights organisations, including the NLA, are members of the International Federation of Reproduction Rights Organisations, IFRRO. In South Africa, the only IFRRO member is DALRO (referred to in the Business Day report), which was founded in 1967 and has managed the exploitation of secondary rights on behalf of publishers since 1990. DALRO is mandated by newspaper publishers in South Africa and it has bilateral agreements with reproduction rights organisations internationally, including the NLA, under which it can license local and overseas content.

The proper licensing of newspaper content still has to develop in South Africa, but with precedents such as the Meltwater case in the UK and with the body of knowledge available from organisations such as IFRRO, it should not be a case of re-inventing the wheel. And the wheel is not new."

André has acknowledged that his firm advises DALRO on its international bilateral agreements and licensing.

License fees payable for search results?
Comments: Afro Leo respects Andre's views and welcomes the contribution. He points out though that the decisions in Meltwater and Infopaq are highly controversial especially insofar as they may mean that end users (such as subscribers to LegalBrief or other media monitoring services or an internet browser) may be infringing copyright (and hence required to pay a licence fee) simply by opening an email containing press clippings or browsing the web. The excellent IPKAT weblog records the controversy over these judgements here, here and here even postulating that Melwater may change internet browsing as we know it. Thus whilst the precedents in Meltwater are helpful, Afro Leo believes we will need to wait until the Melwater appeal judgement, expected toward the end of 2012/beginning of 2013, before the full effect can predicted under local law. Comments welcome!

Darren Olivier

Darren Olivier

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Jeremy Speres
20 March 2012 at 09:09 delete

Controversial indeed! I think Prof. Bentley sums the controversy up nicely: "...there is something fundamentally wrong with a legal regime which renders the innocent acts of many millions of citizens illegal"(http://ipkitten.blogspot.com/2011/07/bently-slams-very-disappointing-ruling.html).

Regarding the double licensing decision in Meltwater, it does highlight a certain disconnect many accuse copyright of having with reality. The user of the clippings service can access the material directly on the newspaper's site without infringing and without a licence, but can't access the very same material if it's provided by a clippings service without a licence even though that clippings service has a licence to do so?

That being said, it’s not easy to explain this incongruity in terms of sheer copyright law.

What right does one have to access material made available on a website to begin with? It's clear that simply viewing a website does constitute a reproduction and that without some exception or defence, this would be an infringement. It seems that there's an implied licence then to users to use a site which is made available to the public. This is especially the case in SA where we don't have a temporary copy defence. Which begs the question, is that implied licence broad enough to permit users to view the material in any context (e.g. via a clippings service)?

If not, then another answer could be that merely viewing a site is not a reproduction of a substantial part because the reproduction that does take place is only ephemeral. That is, can it be argued that an ephemeral copy of something is not a substantial part/copy of something?

If one accepts that viewing a site is a reproduction of a substantial part, then one has to accept that a licence is required. If this is so, then the user of a clippings service will have to argue that the site owner implicitly gives them a licence to view the site in any context and the site owner will have to argue that they are only given a licence to view it directly on the site. This wasn’t touched on really in Meltwater.