The recent Svensson/Retriever decision by the Court of Justice of the EU (CJEU) on hyperlinking has inevitably drawn some incorrect comparisons with the NLA/Meltwater case. As ever, the complex world of copyright court rulings can result in confusion for companies, publishers and internet users!
Below we explain the key differences between the Svensson case and the NLA/Meltwater case currently in the CJEU.
What was the Svensson/Retriever case about?
4 Swedish journalists working for the GoteborgsPosten newspaper took Retriever, a web aggregator, to court for copyright infringement for providing to their clients via their website links to articles appearing in the GP. The journalists argued that this infringed their rights and they should be entitled to control the provision of links to their articles. The Swedish courts referred to the CJEU the question as to whether or not a copyright owner can control provision on another website of a hyperlink to their work.
Essentially the CJEU answered in favour of Retriever. The essence of their answer was that since the articles were already freely available to all internet users on the GP website, by providing links on their own website Retriever was not communicating the articles to a ‘new public’ and therefore not infringing copyright – even if recipients thought the material originated on the Retriever website.
How will this affect the NLA’s case with Meltwater?
The CJEU’s answer in the Svensson case concerns the copyright owner’s right of communication to the public. The NLA’s case with Meltwater concerns the copyright owner’s right of reproduction, which is a different right. As a result, the CJEU’s answer in the Svensson case has no direct bearing on the NLA’s case with Meltwater.
In the meantime, the Court of Appeal (CoA) judgment in the NLA’s case with Meltwater stands. Only one aspect of that judgment, which concerns temporary copies made in a computer and on a computer screen when browsing, was appealed to the UK Supreme Court who, in turn, referred the issue to the CJEU. It is not clear yet when the CJEU will consider the case – possibly this Autumn or Spring 2015.
OK, but how might this affect licensing of web content?
For web media monitoring organisations (MMOs)
Regardless of the CJEU’s answer in the Svensson case, MMOs such as Meltwater will continue to require a licence.
This is because, quite apart from how and to whom they communicate web content, they still have to copy and index that web content which requires permission of the copyright owner under the reproduction right. Even if an MMO changed its service so that it included only hyperlinks –it would still require a licence to copy and index NLA publisher content.
For end users
The CJEU’s answer in the Svensson case concerns the communication of hyperlinks via websites to all Internet users. It does not concern the reproduction of copyright content such as text extracts and/or headlines (including in the form of hyperlinks) that are communicated individually by email. Therefore, where MMO reports are sent by e-mail, the end users receiving them will continue to require an NLA licence. The Svensson case does not affect that requirement.
That will also remain the case, whatever the CJEU/Supreme Court ultimately decide in the NLA’s case with Meltwater/PRCA, because Meltwater has not appealed the CoA’s ruling that end users who receive MMO reports by e-mail require an NLA licence (so it is not in issue before the CJEU/Supreme Court).
As matters stand, the only circumstance in which end user licensing would be affected is if the CJEU/Supreme Court conclude that an end user does not require permission from a copyright owner to access their MMO reports via a web browser, as an alternative to receiving them by email. If that were to happen, an end user would not require an NLA licence to access their MMO reports via a web browser, although the NLA would seek to recoup the lost licence income from the MMOs by increasing their licence fees.
Is the NLA trying to stop free use of sites that anyone can access with a browser?
No. Publishers and NLA encourage access to publishers’ sites and sharing of information found there for non-commercial purposes. NLA licences are concerned solely with commercial use of publishers’ content. MMOs are paid by clients to find information relevant to their businesses. By doing so, the MMOs in the UK enjoy a combined sales turnover of @ £100m per year. NLA licences simply ensure that businesses pay a reasonable fee to ensure that journalism and a vibrant publishing sector are supported.