It is now three months since the Court of Justice of the European Union announced its ‘temporary copying’ decision in the long running web licensing case between NLA and Meltwater.
The cries of ‘won’ and ‘lost’ over the narrow point of ‘temporary copying’ are confusing – and a number of our clients have asked for clarification about NLA licensing of web publications. The key point, which was not under review by the CJEU, is that web published content continues to have copyright protection and commercial use must be paid for. As decided by the High Court and upheld in the Court of Appeal, headlines and snippets of text can attract copyright protection and their use for commercial purposes requires a licence. As a result, publishers and journalists get a fair return for the content they create if it is used by others in paid-for monitoring services.
So what was the case about? There is a concise (and independent) summary on the Lexology web site.
From the perspective of NLA licence-holders: what has changed – and what has not?
Starting with what has not changed, the decision only applies to browsing of web sites; it does not legitimise printing out or downloading works without the permission of copyright owners. The 2012 Court of Appeal ruling on these points was not challenged, so organisations still require a licence for commercially exploiting web published content in these ways.
Secondly, as stated, headlines and snippets, (integral to paid-for media monitoring services) continue to attract copyright protection. So any paid-for monitoring service sending e-mail summaries of media coverage also need a licence to provide the service to their clients.
This means that there is no change to the licensing of current services received by clients of media monitoring agencies. NLA media access customers who have a Web End User Licence will need to retain one.
Turning to what could change, there may be new services developing that will not require an end-user licence, but those are for monitoring agencies to define. NLA media access is ready to create appropriate licences for them, depending on what use of publishers’ content they might propose. We have indicated to service providers and relevant representative bodies that we are open to dialogue on any new services that might take advantage of the CJEU ruling, when they are ready to discuss them.