Linking and Copyright following Meltwater v. Newspaper Licensing Agency

March 14, 2011

Linking is fundamental to the World Wide Web. It ties together the rich tapestry of globally accessible information we now enjoy by enabling users to more easily discover, experience and share content online.

Legal implications of linking

The law often has to reconcile technological innovations with various legal questions to find a way to fit them into its existing structure.  Unsurprisingly it often lags behind.  For example, the courts have struggled to reconcile users’ intuitive and habitual use of linking with the existing intellectual property regime.

The first UK case where the courts were asked to consider hyper linking was Shetland Times.  That was in 1996.  In the Shetland Times case the decision proceeded on the basis of a concession that there was copyright in the headline used as a hyperlink.  Now, following the recent case of Meltwater v. Newspaper Licensing Agency (NLA) we have a decision that a headline can qualify for copyright protection as a ‘free-standing original literary work’.

Briefly, the court decided that the test for copyright infringement is no longer whether words copied are a substantial part of the original  – which is the old test explained in our Copyright eBook: Mistake #4: Assuming it’s OK to copy small parts of a copyright work.  The question now is whether the part copied contained elements which are the expression of the author’s intellectual creation.

This new test is based on the EU Court of Justice decision in the Infopaq case.  It means some headlines are capable of being independent literary works.  Whether a hyperlink is copyright infringement will therefore partly depend on the quality of the extracted part and the level of the author’s skill and labor which the copier has appropriated.  For more on the case see, IPKAT, Laurence Kaye, Michael Simkins and Herbert Smith.

What Meltwater decided

Meltwater, a news monitoring service with 2,350 clients in the UK, provides an electronic press cuttings service via email and a website to PR agencies interested in being alerted when their clients are in the news.  It holds a Web End User Licence to provide the service.

The question that arose in the case was whether Meltwater’s Web End User Licence was sufficient authorization for its customers to access the hyperlinks to online newspaper articles which Meltwater provided to them.

The judge decided that it was not.  By clicking on the links provided by Meltwater the end users infringed the publishers’ copyright.  Therefore they needed their own Web End User Licence agreements simply to receive the links from Meltwater.   The judge reached its decision despite Meltwater’s argument that its clients were simply receiving the Meltwater News service and should not need a separate licence just for this.

By analogy with press cuttings services offline where recipients do not require a licence simply to receive cuttings, Meltwater argued that its clients should only need a separate licence if they wanted to forward the links to others.  Such forwarding would equate to copying the cuttings internally or externally for wider dissemination, which the House of Lords decided did require a separate licence in NLA v. Marks & Spencer.

Meltwater’s argument that only one copy was made as part of the Meltwater News service which was the copy sent by Meltwater to the end user was rejected. The judge did not accept that clicking on the link to read the item was merely incidental copying exempted from copyright infringement under s.28A.

So, from this it follows that if you are linking to copyright material to which the copyright owner objects, there will be two potential copyright infringements: one by you when you provide the link and another by the party accessing the link.

Limitations of the decision

Meltwater is set on appealing the decision that accessing a hyperlink creates sufficient copying to infringe the copyright in material accessed.

What is worth noting is that the terms of the destination websites forbade access via a media monitoring agency service or to commercial users. They specifically stated that paid for media monitoring services and their customers require a licence to use the content.

This point was not really properly argued and discussed in the case.  Although Counsel for Meltwater argued that no-one reads such terms and conditions and that in order to read the terms and conditions you would need access to the site first in any case, the judge complained that she was taken to no authority as to the effect of incorporation of terms and conditions, nor as to implied licences, nor as to what is commercial user for the purposes of the terms and conditions nor to how such factors impact on whether direct access to the newspaper publishers’ websites creates infringing copies.

As she put it:  “As I understand it, I am being asked to take a broad brush approach to the deployment of the websites by the Publishers and the use by End Users“.

Given that the rationale of the decision was partly that copyright infringement would occur if a hyperlink led to a site which did not give express permission to access the content, this is a critical issue which requires clarification by the courts.

In part two of this blog article, I will take stock of how one might approach linking given the uncertainty which this decision brings to this area of the law.