Cutbot Ltd and NLA media access Copyright Tribunal issues final decision

The Copyright Tribunal has today given its decision on the reference made by the online media monitoring service Cutbot.  The decision confirms an earlier order by the Copyright Tribunal, made in May 2012, which approved the terms of NLA’s licensing following the original challenge by Meltwater Group.

The Tribunal has:

• Upheld all of the licensing terms relating to the NLA media access Web Database Licence (WDL) for media monitoring agencies that were disputed by Cutbot.
• Confirmed that the licence fees are fair and reasonable.

Key points made by the Copyright Tribunal in coming to its decision include:

“There is no evidence that any licensee other than Cutbot finds the existing WDL tariff unacceptable, whereas there is evidence that a number of licensees find the existing WDL acceptable and do not wish to have that tariff changed.”

“Although Cutbot argued that the current structure acts as a barrier to entry to the market by small operators no evidence was presented by Cutbot to support this assertion.  There was however evidence that a number of licensees with fewer clients than Cutbot have taken out a WDL.  This is an indication that the fees are not acting as a barrier to entry by small players into the market.”

“We do not consider that it would be reasonable for the copyright owners to receive nothing or very little by way of a licence fee simply because the licensee has few clients.”

David Pugh, Managing Director for NLA media access said:

“NLA media access is pleased that the Tribunal recognised the economic value of publishers’ editorial content and the value obtained by monitoring agencies in copying it in order to provide alerting and evaluation services to their clients. 

“The Tribunal observed that Cutbot was not supported in its objections by any other monitoring agencies, which is unsurprising as NLA arrived at these licence terms through thorough extensive industry consultation.

“This ruling reinforces the important principle that a fair price must be paid by organisations whose business model relies upon commercialising publishers’ copyrighted content.”

Background

NLA media access first introduced web licences on 1st January 2010, giving media monitoring organisations (MMOs) and their clients the right to make commercial use of content published on newspaper websites.  Licensing affects those businesses that supply and receive headlines, text extracts and links to newspaper websites as a part of a paid-for media monitoring service.

In making its decision, the Copyright Tribunal noted that the rest of the media monitoring market, including Meltwater, was now being licensed under existing arrangements, following the earlier decision.  A list of the UK media monitoring agencies that have entered into the Web Database Licence can be found here. 

About NLA media access

Originally called the Newspaper Licensing Agency, NLA media access is owned by eight national newspaper companies and protects the publishing industry's copyright through collective licensing.   It now represents the rights of 1,400 national, regional and foreign newspapers, over 750 magazines and 1,100 + websites.

NLA media access gives permission for organisations to copy from an extensive range of newspapers, magazines and websites and provides database services to both media monitoring agencies and publishers. In 2013 more than 200,000 organisations relied upon NLA media access annual licences.

Eighty per cent of the company’s revenues are returned to the publishers to be invested back into the industry. In 2013 NLA media access revenues equated to the salaries of 1100 journalists.

For more information contact David Pugh dpugh@nla.co.uk or Andrew May on andrew.may@theopen-road.com / 020 3542 1119

NLA vs Meltwater and Svensson vs Retriever – a clarification

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.

ClipShare: A vital resource for publishers and journalists

NLA media access is best known for licensing newspaper and magazine content to thousands of communications and PR professionals and supplying published content to media monitoring agencies through the eClips database service.   But the investment that national newspaper publishers have made in eClips also enables us to offer a range of data driven services to publishers themselves, including a cutting edge resource called ClipShare.

With over 40 million print articles from over 130 publications dating back to 2006,  ClipShare offers journalists at subscribing publishers access to news pieces in-page (viewable as they would appear on a printed newspaper spread).  The database is accessed by thousands of journalists researching stories every week and is a vital tool for publishers in keeping an organised, easily accessible record of the content they produce every year. 

ClipShare is having a major upgrade in 2014:

• In the spring, a new search engine will reduce search times, ensuring sub-second results even for complex queries
• In the autumn, the archive will include web as well as print-edition content
• The print archive will expand further, with several magazine titles joining the database during the course of 2014
• And finally, we are planning to extend the database ‘back in time’, by loading a text archive of national newspapers from 2001 to 2006

All of this adds up to a marvellous resource for the busy journalist working to a deadline.

News UK, Trinity Mirror, Associated Newspapers, Northern & Shell, Telegraph, Independent, Guardian, Johnston Press, Newsquest and FT journalists currently have access to ClipShare, but other publishers are expected to join before the year is out.

If you are a publisher or journalist and would like to know more about how to subscribe please contact our Publisher services Executive, Jenny Crewe jcrewe@nla.co.uk  for more information.

Copyright licensing for schools

Over the past year representatives of the creative industries have worked together to implement recommendations from Richard Hooper’s report on streamlining copyright licensing for schools.

As a result of work by the Copyright Licensing Steering Group and a separate review of the education sector, NLA media access (acting on behalf of newspaper publishers) made two important decisions:

1. To start charging a fee for the NLA Schools Licence
2. To appoint the Copyright Licensing Agency (CLA) as our agent for newspaper licensing

Currently schools pay for copying rights for media such as books, magazines, music and film. NLA media access is now making its policy consistent with market practice. The new NLA Schools Licence provides comprehensive cover for newspapers based on a standard set of terms to match the CLA licence.

By appointing CLA as exclusive agent NLA is simplifying the licensing process for schools, offering a single point of contact and centralised administration.

Other changes such as a survey based on existing CLA data collection processes, plus a single licence renewal date of 1^st April, will simplify copyright administration even further.

Why should my school have a newspaper licence?

Whenever a teacher, staff member or student makes a copy of a newspaper or newspaper website they are required to contact the publisher and seek permission. The NLA Schools Licence covers the school for any copying for teaching purposes and provides the necessary permission from multiple publishers in one simple transaction. There are over 1500 national and regional newspapers and 1000 newspaper websites covered, in addition to selected foreign titles.

What will it cost?

For Independent schools and those in Northern Ireland, Wales and Scotland, the fees will be £50 for schools with fewer than 750 FTE students and £75 for more than 751 FTE students.

Through CLA administered arrangements with the Department for Education, all state-maintained schools in England will be covered under a blanket CLA licence until 2015.

Helping publishers monitor and control copyright infringement

During most weeks over 1700 web domains infringe copyright content of just four national newspaper publishers. In one recent week one domain alone (www.libreprensa.com) infringed 813 articles. The next highest infringement of one publisher’s material by a domain during that same week was 684 articles.

NLA is now running an infringement tracking system to identify and contact infringers. The service identifies where content taken from newspaper websites has been copied elsewhere in the public domain, removing licensed sites from the analysis. An initial thirteen week trial  with four national newspapers (Independent, Telegraph, Guardian and Mirror) ran in q4 2013 to.

•        analyse the level of infringement against publisher rules
•        compile domain ownership data and contact details where possible
•        advise users of the potential issues
•        after confirmation with publishers, take appropriate action and;
•        follow up referrals to publisher legal teams where required

In the trial a large number of domains removed infringing content, or complied with publisher rules (such as linking appropriately) and also referrals to publishers for licences or the NLA web republishing licence.  The service is now live and NLA looks forward to developing it, and building closer links with other publisher initiatives in this area. 

There are no simple solutions to copyright abuse, but NLA media access will continue to work with publishers to educate users on appropriate use, and – where necessary – take action on infringement.

For further information please contact Jenny Crewe jcrewe@nla.co.uk