NLA vs Meltwater : Protecting Online
Content Revenue Without Paywalls
By The Scoop Team
(First published in edition one of "Scoop.Nethui" distributed in print form at Nethui 2012, Auckland Convention Center, 11 July 2012)
Regulating the usage of online content without adopting a pay wall system has proven to be one of the greatest challenges for online media businesses.
But a simple solution to this problem now exists.
Recently, the Court of Appeal of England and Wales issued a judgment in the case referred to as NLA v Meltwater. This case sets a precedent in favour of online content owners, and supports their ability to limit the usage of their published content with terms and conditions of use.
NLA v Meltwater says you can be charged for distributing or receiving a link.
NLA sells user licences for online content on behalf of a number of online newspapers. Meltwater is a media tracking company that scrapes online newspapers for content and then sells that scraped content to third party subscribers.
Meltwater was taking NLA material and selling it in breach of the terms and conditions of use that the NLA newspapers had published on their websites.
NLA sued Meltwater and a number of Meltwater’s subscribers for breach of copyright and won.
The Meltwater issue in law is fairly simple.
The primary issue is whether ‘end users’ of copyright material could be required to obtain a licence for use of that material from the copyright
holder, subject to the terms and conditions set out by the copyright holder - in circumstances where a media tracking company had provided those End Users with URL’s, titles, and content summaries.
It was held that end users are bound to obtain licence by virtue of the terms and conditions imposed by the plaintiff publishers on their respective websites, so long as those terms and conditions are consistent with copyright law.
The Court of Appeal unequivocally confirmed that online content is copyright protected.
The ruling gave a clear declaration that most (if not all) businesses subscribing to a media monitoring service that contains content from online newspapers requires a licence.
Analysis of the decision.
The position taken by the Court of Appeal was controversial in a number of ways; it has been said that:
- the decision is impractical;
- that it opens the floodgates for trivial litigation;
- and that it fails to take public policy into consideration as much as it should do.
One of the main criticisms is that end users who received the Meltwater news service would themselves infringe the terms and conditions of the publishers.
The Court of Appeal ducked the difficult issue of precisely when the activities of a given end user would infringe. Thus, the decision is quite vague in respect of how far the law extends. However, this criticism does not attack the legal merits of the decision, it challenges the decision on the basis that it does not provide a detailed regime by which end users of copyright material can protect themselves.
The Court of Appeal has also been criticised for following the judgment of first instance in relation to the protection of titles and short extracts.
By copying the titles and short extracts of newspaper articles, it was held that end users would sometimes infringe copyright.
In so doing, it referred to case law that suggested titles may sometimes be protected, but failed to explain away other statements that titles will rarely be substantial enough to constitute works.
Again, this criticism does not attack the legal merits of the decision, it attacks an omission of the Court to elaborate on how far the general rule applies.
Much criticism relates to the scope of the decision; if misunderstood the decision does seem overly burdensome.
The decisions are read by many as a legal regime which renders the innocent acts of many millions of citizens illegal. It was contended by dozens of bloggers that in the absence of an express or implied licence, hereafter web-users surf the internet at their peril.
This is true.
But in almost all circumstances, terms and conditions of use will only attempt to limit commercial use of copyright material. If a site prohibits access to certain users (commercial users for example, as many newspaper sites do) the browsers acts becomes ipso facto immediately infringing. This may seem scary, but practically speaking it is not out of the ordinary – people engage in all manner of activities subject to terms and conditions of use that places the onus on the user to refrain from certain activities.
Applicability in New Zealand.
Although rulings of the Court of Appeal of England and Wales are not directly binding precedent in New Zealand it seems that the New Zealand courts would take a similar stance. New Zealand and UK copyright legislation is not materially different in respect of any ability to restrict online usage of content to non-commercial users, the issue is unprecedented in New Zealand common law, and it appears that NLA v Meltwater would be authoritative in any New Zealand court if the matter arose here.
The positive interpretation of UK copyright law provided legal clarity and certainty for all players in the UK market. It seems that the similarities between New Zealand and UK copyright law make it likely that the same rules apply here. With this greater clarity, online publishers are now in a better position to charge fair royalties for the use of their content, suppliers of paid-for online monitoring services will benefit from a level playing field and clients of such services know that their licence provides a simple way to guarantee compliance with the law.
Adopting Meltwater At Scoop.
After the Meltwater ruling Scoop Media adopted and published terms and conditions of use on its website that limit the free usage of Scoop content to non-commercial users.
These term and conditions endeavour to protect Scoop’s availability as a public news source while maintaining Scoop’s viability as a commercial entity.
Scoop believes the Meltwater decision provides the basis of equitable regime founded in the most basic principals of copyright law, namely that content creators ought to have control over income earned from the use of their work.
Scoop considers this case to be hugely important in relation to the funding of news production in New Zealand, and we commend it to Nethui as a topic for urgent discussion and action.