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27 July 2011

What’s In the Headlines? Judgment of the Court of Appeal in NLA v Meltwater

What’s In the Headlines? Judgment of the Court of Appeal in NLA v Meltwater

On 27 July the Court of Appeal (CA) released its judgment on whether Meltwater’s customers (ie, public relations consultants) require a licence from the NLA (the UK collecting society which manages licensing schemes on behalf of newspaper publishers) in order to lawfully receive Meltwater’s online media monitoring service (Meltwater News), bearing in mind that Meltwater is already licensed by the NLA for the provision of such a service.

At first instance, Proudman J had found that there is prima facie infringement when a copy of Meltwater News is

  1. made on the user’s computers and remains there until deleted
  2. viewed by a user via Meltwater’s website, and
  3. made by linking to an online article (as the whole article is uploaded on the user’s computer).

The CA agreed with Proudman J’s conclusions and dismissed the appeal, stating that Meltwater’s customers need a licence for their activities, as these involve restricted acts of copying because, factually, the copies made are not the same copies as those sent by Meltwater. On the facts, the defences raised by the appellants (ie, temporary copying and fair dealing) did not apply and the submission that NLA was attempting to double license for the same acts of copying was held to be factually incorrect.

The CA also confirmed that headlines are capable of being protected as literary works, in that they are ‘literary’ (as they consist of words) and are capable of being ‘original’ in copyright terms (ie, they originate from the author and are an expression of the author’s labour and skill). Contrary to Proudman J’s decision, the CA observed that the UK originality test has not been glossed by the CJEU decision in Infopaq, where it was held that copyright "is liable to apply only in relation to subject matter which is […] the author’s own intellectual creation".

Useful links

Full text of decisions:

The Newspaper Licensing Agency & Ors v Meltwater Holding BV & Ors [2011] EWCA Civ 890
Infopaq International v Danske Dagblades Forening, C-5/08 [2009] ECDR 19



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