The Newspaper Licensing Agency’s recent court action about unauthorised use of newspapers’ web content has spawned a key ruling on copyright.

The NLA sued over a media-monitoring service provided to business customers by Meltwater News UK and its Dutch parent company.

The background was that Meltwater had been negotiating to buy a copyright licence from the NLA to ensure it has permission to ‘scrape’ snippets of information from newspapers’ websites using so-called spider programs – a commercial activity which, according to the ruling, helps Meltwater make “millions of pounds…for its own gain”.

Meltwater sends its customers a hyperlink to online newspaper reports which contain certain searched-for words and phrases. The information provided often includes a copy of the newspaper article’s headline, its intro, and a brief extract from the text of the story, up to a maximum of 256 characters excluding spaces.

Customers might receive extracts from as many as 50,000 newspaper articles a year. They can read the copied information in various ways: email format; accessing it via Meltwater’s own website; or by clicking through on the hyperlink and reading it on the newspaper’s own website.

The NLA and a range of newspapers that own shares in it argued that Meltwater’s customers should each be obliged to buy a copyright licence before being entitled to receive the online cuttings service, otherwise they would be infringing the newspapers’ copyright.

Mrs Justice Proudman agreed. She considered evidence from a Daily Mail executive about the skill required to write a good headline and decided certain headlines had copyright in their own right as “independent literary works” separate from any copyright in the accompanying news article as a whole.

She also decided there could be copyright in the copied text extracts, as literary works.

The fact that only a few words were copied was irrelevant: what mattered was the quality, not the quantity, of what was copied. She said the test was whether the short extracts included “an expression of the intellectual creation of the author” – which seems a relatively easy test to satisfy.

In this regard, the judge relied on a European Court of Justice ruling earlier this year (the ‘Infopaq’ case) which held that copyright subsisted in a mere 11-word extract from a larger written work.

She said Meltwater’s customers could not rely on the defences of ‘fair dealing’ for the purpose of criticism or review, or for the purpose of reporting current events.

Their use of the copied information – which included making a further copy of it on their own computers and sometimes forwarding it to others – did not amount to criticism or review, or the reporting of current events. It was not commercially fair, and insufficient acknowledgment was given to the author of each news report.

So, without a licence Meltwaters’ customers were held to be infringing the newspapers’ copyright by receiving and using the online cuttings service as they did.

The decision has highlighted that copyright may subsist even in short phrases, such as headlines and brief extracts from news stories.

It brings to mind the legal skirmishes between newspaper publishers and Google a couple of years ago in a Belgian court (see HTFP: 17.06.08), which also decided newspapers’ copyright had been infringed.

Free media-monitoring services such as Google News and Google Alerts now have arrangements or commercial understandings with the newspaper publishers involved in the Meltwater case whereby these services are licensed or otherwise permitted.

Under the Copyright Designs and Patents Act, in English law there is no infringement of copyright unless the whole or “a substantial part” of a copyright work is copied.

Justice Proudman’s judgment shows that in the light of the ECJ’s steer in the Infopaq case, claimants may now find it quite easy to persuade English courts that “a substantial part” of a copyright work has been copied.

This High Court ruling seems likely to be appealed by Meltwater and the Public Relations Consultants Association, which represents many of Meltwater’s customers and was itself a defendant in the case.

But for now it starkly illustrates that even small snippets of content from publishers’ websites may be protected by copyright, and routine procedures for referencing and linking to words or phrases on others’ websites without a licence may well infringe that copyright.