The NLA v Meltwater – three things to remember this week

The NLA / Meltwater Supreme court case around ‘temporary copying’ begins today.

We know that there is often confusion from some quarters as to where the NLA v Meltwater case has reached, what it covers and what the future implications are.

With that in mind, we hope the following points clear up some of the common misconceptions:

The Supreme Court case is considering the relevance of the ‘temporary copying’ exemption in the Copyright Designs and Patents Act in the context of a paid-for Meltwater monitoring service.  The attempt to use this copyright exception to legitimise an unlicensed Meltwater service failed in the High Court (2010) and Court of Appeal (2011); but it is having another outing this week in the Supreme Court.

The Copyright Tribunal case, covering the terms and pricing of NLA web monitoring licences, was resolved last year and licensing terms were accepted by all parties.  The NLA has now licensed most Meltwater clients, together with the clients of all other UK media monitoring agencies.  A joint statement by the NLA, Meltwater and PRCA accepting the decision is available here.

This Supreme Court appeal does not affect current services; instead, it raises a hypothetical issue – whether a heavily revised service in which the end user did not receive copyright material but only opened articles on a publisher site might be validated by the “temporary copying” exception.  NLA argue this exception is very limited and only applies to intermediaries, such as ISPs to allow networks to pass data; the PRCA (on the same side as Meltwater) that it applies to any browsing by users.  That is what the Supreme Court will address.

Most acts of internet browsing are encouraged by publishers and are either authorised or fall within an existing exception.  Browsing a website for private study and non-commercial research is already expressly encouraged and permitted by publishers’ terms of use and by existing copyright law – for example. it is not an infringement of copyright if such acts are undertaken for “the purposes of research for a non-commercial purpose” or for “the purposes of private study”.  For those readers interested in a more detailed explanation, Simon Clark, Head of IP at Berwin Leighton Paisner, wrote an article on the matter which is well worth a read.

Although a reference to the European Court of Justice is possible we hope to have a final judgment soon.  Whatever the result, the NLA will continue to provide businesses and publishers with efficient rights and content exchange services.

Andrew Hughes

Commercial Director, Newspaper Licensing Agency

Follow the NLA on twitter:  @nla_ltd