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