The complicated battle between the Newspaper Licensing Agency (NLA) and Meltwater/the Public Relations Consultants Association (PRCA) finally came to a head yesterday afternoon.
With both sides claiming victory, the Copyright Tribunal has cut the NLA's proposed online licensing fees and agreed that the suggestions were "not reasonable and required amendment".
A brief recap: back in 2009, the NLA introduced licensing for aggregators and media monitoring firms that use content from its members' websites.
Meltwater objected to end users having to pay an additional fee to click online links, on top of the fee already paid by the monitoring firms (between £5,000 and £10,000). Meanwhile, the NLA took Meltwater and the PRCA to court for copyright infringement in response for 'unpaid fees'.
(For more background on how this came about, read our piece from 2010 here – and the NLA's response to that interview here).
Both sides are now claiming partial victory. The PRCA and Meltwater say that by fighting this licensing scheme, it's saved UK businesses an estimated £100 million over the next three years (while it should be noted that the NLA's estimate is just £2m). Using Meltwater's estimates, the savings for its clients would be more than £24 million in the same period.
On the other side of the fence, NLA commercial director Andrew Hughes professed: "We're delighted, we've got what we wanted" – while its clients vow to push forward with more restrictive online licensing.
Associated Press (AP) has already told paidContent that it will sue Meltwater for re-using its stories without permission, something that the monitoring firm says comes as a "total surprise".
AP CEO Tom Curley said that:
Meltwater delivers to its paying customers substantial verbatim excerpts from AP stories (and) is a directly competing news service for many AP subscribers. Meltwater News is a parasitic distribution service that competes directly with traditional news sources without paying license fees to cover the costs of creating those stories."
So, while this might be a win in the short-term for Meltwater and the PRCA, the battle is far from over.
Additionally, the NLA will also continue to pursue licensing users that rely on another 'monitoring service' – Google News.
The NLA has said previously that it has been mandated by its owners and intends to consider "UK business users of Google's news alerts".
The PRCA and Meltwater suggest that this could mean an email to a work colleague with a news headline, browsing a free news service or sending a tweet with news at work requires a licence from the publishers, without such licence they infringe copyright.
We spoke with Meltwater Group's business development director Jens-Petter Glittenberg and PRCA CEO Francis Ingham about how this will affect the industry.
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Are you happy with this outcome?
FI: Meltwater and the PRCA are very happy that the UK Supreme Court has granted us the right to appeal the absurd conclusion that the mere act of browsing the Internet could be a copyright infringement.
We will contribute in any way we can to the mission of revising the UK copyright law. Meltwater and the PRCA support a number of initiatives from the UK government in this regard, and hope that the revision now taking place will lead to a UK copyright law that is compatible with the fabric of the web and the daily habits of millions of UK Internet users.
What's the broader effect on not just PRs, but digital marketers as a whole? The new addition of licensing business users of Google News seems ludicrous? What's a 'business user' defined as?
FI: The previous verdicts from the High Court and Court of Appeal make it clear that, according to UK copyright law, the copy that appears on the screen when you browse is indeed a copy that enjoys copyright. And that unless they are licensed, business users infringe by simply browsing the web.
This means that the newspapers can license all business users if they want to. So the verdict from the UK court definitely has ramifications far beyond the PR industry.
The NLA had previously launched the licensing scheme for users of paid-for online media monitoring, but during the proceedings at the Copyright Tribunal, it became clear that it now requires a license from business users of Google "that forward search results within their organisations".
J-PG: How they plan to do it? I don't know. In principle we are happy to see that the NLA treats like with like, as the users of Google News commit the very same acts as the user of Meltwater. But at the same time it shows how out of sync the UK copyright laws are with regards to how everyone uses the Internet today.
The term "business users" is not clearly defined. However, it seems to include NGOs, government and local councils.
One of the concerns historically is that PRCA members, and in fact any end user, could be criminalised for clicking online links without paying. Now the fees have been cut, that's a good thing, but what's the consequence for anyone without a licence?
J-PG: Any business user browsing news sites in the UK is infringing copyright unless specifically licensed.
If I send you an email with a headline to a news story, you would have an infringing copy of content owned by the newspaper on your computer.
I am not sure it is a criminal act, but I am sure it will make you a a copyright infringer if I emailed you a search hit from Google in a work capacity.
Won't this be impossible to police? Will the NLA base this on complaints, similar to the ASA?
J-PG: For clients of MMOs it will be easy for the NLA to police as we have to send over a list of all our clients every month.
How they are going to find business user of Google News? You would have to ask them. But Google obviously have people's email address if they receive alerts from Google…
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Meltwater and the PRCA will appeal further aspects of the Court of Appeal's decision on web browsing in February 2013. In the pair's favour are several recent decisions by the EU Court of Justice that are consistent with their position.
Additionally, Vince Cable, UK Business Secretary recommended in August that the UK government should change out-of-date copyright laws based on the recommendations of the Hargreaves Report: Digital Opportunity – A Review of Intellectual Property and Growth. In response, the UK Intellectual Property Office estimated that changes to the law would bring £7.9 billion to the UK economy.
For the most part, the NLA seems to making licensing recommendations that are somewhat misguided. Policing the use of Google News would be near impossible, not just because this is a grey area, but because there are far too many questions that surround the implementation of such a ruling.
Just what is a 'business user'? How do you separate sharing content for personal use versus professional? If you read something within work hours or via a work computer, does that automatically include it within licensing laws? And that's before Google even had a chance to respond.
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