UK tribunal reaffirms links licence requirement for PR and cuttings firms

By | Published on Thursday 16 February 2012


So, how about a bit of digital copyright law where the music industry is a customer rather than a seller? The UK’s Copyright Tribunal yesterday considered the licences that are required by press cuttings and PR agencies or departments that aggregate, curate and circulate links to articles from newspapers and magazines to corporate clients. That such a licence is required was actually confirmed in the UK appeals court last year, and reaffirmed when the Supreme Court refused to consider a further appeal against said licences last November, though this week’s interim ruling from the copyright courts provided some clarity on how all this will work.

But first, some background. This affects any cuttings or PR agency, or in-house PR unit, that provides commercial media monitoring and reporting services, ie they provide cuttings of or links to any coverage about a company, its operations or its competitors (or, in the case of record labels, usually coverage of its artists). Traditionally this service would involve making physical photocopies of coverage, and such copies required a licence from the copyright owner, ie the newspaper or magazine publisher. And this was usually administered by one central body, the Newspaper Licensing Agency, which is sort of the PRS of the newspaper world (though News International and the FT operate their own systems).

Increasingly these days, though, cuttings and PR companies provide clients with lists of headlines and links rather than physical cuttings, and some in the sector argued that, as physical copies were no longer being made, no licence should be required. Which probably makes sense at first sight. But the NLA disagreed, successfully arguing in court that a copyright also exists in a headline or any URL primarily made up of an article’s headline, so even if no physical copy is made, a licence is still required – albeit a special online licence. And as the Supreme Court has refused to hear an appeal on this matter, the Court Of Appeal’s ruling in the NLA’s favour stands.

That said, one additional issue in this debate will be argued before the Supreme Court – something which revolves around a technicality of how web browsing works – ie when you access a website your browser makes a temporary copy of the content you see. Under EU law that temporary copy is exempt from any copyright licence requirement, though it isn’t clear whether that applies in a commercial context, especially where an article is accessed via a commercially supplied link. That particular point is still to be argued in the UK’s highest court.

This week’s hearing at the Copyright Tribunal was less to do with whether link licences are required, and more to do with what rates it’s reasonable for the NLA to charge, and what form those charges should take. On this issue the PRCA, a trade body for PR agencies, and digital cuttings company Meltwater, who have both opposed the links licence throughout, claimed a victory, saying that, in an interim decision, the Tribunal backed seven of the nine changes they requested be made to the new licence, in particular on fees and how they are charged. Meltwater reckons those changes could save the PR and media monitoring industries £100 million over the next three years.

PRCA boss Francis Ingham told CMU: “Both Meltwater and the PRCA have invested huge resources ensuring the PR industry and other internet users are not subject to unreasonable costs. The savings we have achieved for the industry highlight how important it was that we stood up to this scheme when others just accepted it. This is a huge win for Meltwater, the PRCA and its members. We have won the battle. We must now continue to fight to protect the broader principles of the internet. The mandate the NLA has been given is against the ethos of the internet and sets UK copyright law in a head on collision course with every day internet users. We share their concern and will now step up our campaign to make UK copyright law fit for a digital age”.

That latter viewpoint – about the wider implications the existence of a links licence could have on more general internet usage – is contentious. Many in the tech community share Ingham’s concerns, with some suggesting anyone sharing links to newspaper and magazine websites, or even just accessing such content, as part of their professional work, could be subject to licence fees, if the legal principles behind the NLA’s licence are interpreted in a wide way. Some have even suggested it could limit the freedom of any search engine, media, blogger or even simple web user, to share links to newspaper content.

The NLA disputes these claims strongly, though, and it is true that such doom and gloom is based, in the main, on the ‘thin end of the wedge’ logic that is often employed when objecting to unpopular new – or newly confirmed – copyright rules.

The NLA argues that it is only interested in licensing commercial media monitoring services, ie companies who directly profit from distributing article extracts compiled to the brief of a specific client, and not just anyone passing on links to newspaper and magazine content. It adds that its members – the newspaper and magazine publishers – have no interest in limiting the non-commercial, non-fee-based distribution of links to their respective content, given that drives a lot of the traffic their online services enjoy. Opponents, though, would presumably argue that, while this may be the case for now, they worry about how increasingly desperate media owners might further exploit this copyright in the future.

Either way, the NLA said it welcomed this week’s Copyright Tribunal interim ruling on the links licence, despite the PRCA and Meltwater getting their concessions (which, the NLA argues, are not as dramatic as its opponents suggest). The agency’s MD, David Pugh, told reporters: “We welcome today’s decision which follows two court cases confirming the legality of licensing. We are pleased that the Copyright Tribunal has upheld the principle and structure of our online licensing scheme, and confirmed that Meltwater is subject to the same requirements as media monitoring organisations. The judgment provides a measured, equitable regime that will ensure stability for both publishers and end-users alike: our customers will benefit from a transparent licensing structure and newspapers can be sure of a fair reward for their content”.

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