On February 14th, 2012 following the High Court and Court of Appeal decisions, the UK Copyright Tribunal released an interim decision concerning the requirement of licensing agreements for media and news monitoring services in Meltwater Holding BV v The Newspaper Licensing Agency Limited. The Tribunal determined that services such as Google News and Alerts as well as other media monitoring services, should be required to license copyrighted materials from their publishers.
The Respondent, Newspaper Licensing Agency Limited (NLA) was formed in 1995 by eight national newspaper publishers, and now represents over 1300 regional and national newspapers. The Agency was created in order to facilitate the licensing of its members’ copyrighted content. In this complaint, the NLA argues that the two new licenses they launched in January 2010 (the Web Database License (WDL) and Web End User License (WEUL)) should be applicable to the business services offered by the Applicant, Meltwater Holding BV.
Meltwater Holdings BV, a “paid for web aggregator”, charges an annual subscription fee for the media monitoring services that they perform for their clients. Meltwater conducts key word searches through an automated system which sifts through news and other articles and sends direct links to the source websites. Clients who wish to access the article will then have to follow the link to the source website where they will be subject to the terms and conditions required by those websites independently (including payment where a paywall was present).
Meltwater argued that their business model and services was comparable to Google News and Google Alerts, and should therefore not be subject to licensing agreements by the NLA. However, the Tribunal held that just because Google did not contract with NLA, it did not prevent Meltwater from contracting with them.
The legal framework considered by the Tribunal to determine whether or not these licensing schemes were reasonable included sections 119, 129 and 135 of the Copyright, Design and Patent Act of 1988.
Of particular interest was the interpretation of section 129 which allows for the Tribunal take into account similar existing licensing schemes in order to avoid unreasonable discrimination between licensees. The Tribunal found that a distinction should not be drawn between Meltwater and Google following the interpretation of the term “same person” in section 129, for the sole reason that Google deals directly with copyright owners and not with collective agencies such as the NLA. It is noteworthy that the NLA plans to “require licenses from commercial end users of Google Alerts who forward on the emails received within their businesses.”
In order to examine the relationship between the press clippings agencies (PCA’s), Meltwater and Google, the Tribunal conducted an analysis of elements such as the nature of the services provided, other services offered, identity of customers, finances and scale of the three entities.
Generally, the Tribunal found that even though the three entities had dissimilarities, and were not perfect competitors for one another, there was an overlap in the services that they provided, and as such, affected the market for one another to some degree. For example, where the PCA incorporated a human element (who read the material in order to verify the contents) and charged based on the number of links, Meltwater uses an automated algorithm programmed to search for key words. Also, while PCA’s charge based on the number of links provided, and Meltwater bases their subscription on the size of the organization and number of end users, Google is able to offer their services free to end users because of advertising revenues.
The Tribunal held that just because there are similarities between the services offered by Google and Meltwater, it “[d]oes not mean that Meltwater should not pay anything at all for their usage of copyright material. Far from it.” (para 132) The Tribunal further held that “[i]t would be unreasonably discriminatory as between Meltwater and Google, for the WDL/WEUL licensing scheme to be priced in such a way that Meltwater are driven to cut down drastically the number of links they send to their customers, for example by introducing a human cross-check of the kind offered by PCAs, without imposing the same thing on Google.” (para 134)
Finally, in determining the position of Google in relation to licensing schemes, the Tribunal held that “We believe a significant reason why Google is not being made subject to a licensing scheme like the one before us is simply because the newspapers do not wish to take it on, despite the fact that it is using copyright material in exactly the same way as Meltwater. That is not a good reason for ignoring Google as a comparator altogether.” (para 132) In other words, based on the Tribunals’ findings, Google News and Google Alerts services are subject to the same licensing scheme as other news monitoring agencies.
Interestingly, Canadian publishing giants such as “Postmedia Network Inc., The Globe and Mail Inc., Toronto Star Newspapers Ltd., Sun Media Corp. and Le Devoir Inc.” launched similar lawsuits against Meltwater in 2011.
Courtney Doagoo is a doctoral student at the University of Ottawa, Faculty of Law.
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