In light of this week’s developments in the ongoing case between Meltwater (supported by the PRCA) and the Newspaper Licensing Agency (NLA), we thought it would be helpful to clarify just what’s happening and what it means for CisionPoint users.
The first thing to make clear is that nothing has changed. Anyone providing monitoring services still requires a license from the publishers in order to do so. Licenses are required to make or distribute copies: anyone receiving email monitoring reports must be appropriately licensed, as must anyone downloading, printing out or otherwise sharing media monitoring content within or outside their organisation.
Finally – and this is the matter at hand – licenses are still needed by anyone viewing copyright material through a portal, because what this week’s judgement calls ‘ordinary use of the internet’ results in temporary copies, e.g. temporary on-screen copies, local caching of pages.
This final point is the one being debated before the UK Supreme Court. In an earlier ruling, the Court of Appeal backed the NLA’s claim that publisher licensing was required in order to view media monitoring through a portal precisely because of the creation of these temporary copies. Yet the Supreme Court has acknowledged that ‘ordinary use of the internet’ potentially affects millions of non-commercial users who are unwittingly copying (albeit temporarily) copyright material, noting that such use is protected by the temporary copy exception of UK copyright law as long as it ‘does not conflict with a normal exploitation of the work or other subject matter and do not unreasonably prejudice the legitimate interests of the rightsholder’. It is, of course, the precise nature of ‘normal exploitation’ and ‘legitimate interests’, not to mention what may or may not constitute ‘independent economic value’, or indeed ‘temporary’, that is fuelling the legal argument.
While the Supreme Court’s judgement went against the Court of Appeal and accepted arguments that browsing and viewing articles online do not require authorisation from the copyright holder, it was not in itself a ruling. The Supreme Court has only referred the case to the Court of Justice of the European Union, so that the point can be clarified across the EU.
In short – and this is easy to miss in many of the conflicting communications about the matter – there is no ruling here, at least not yet. Like any other company, Cision still has an obligation to be licensed in order to upload copyright material onto our client portals. And similarly, customers still need a licence of their own from the publishers in order to view that content.