Visit speed website Wadd's PR and Media blog home
June 6th, 2011 by Wadds

NLA ruling “absurd” says Cambridge IP Professor as Meltwater and the PRCA head back to court

Meltwater and the PRCA are back in the High Court next week to challenge the ruling from November last year that found in favour of the NLA. The ruling grants inbound internet links a copyrighted status that would require any businesses circulating them to obtain a licence from the NLA.

Tonight the PRCA organised a debate at the British Library with representatives from all of the parties concerned and an audience made up of professionals from the PR and media industry.

University of Cambridge IP Professor Lionel Bentley didn’t pull any punches when he called the original High Court ruling absurd. He said that on the same basis any headline, or title of a book or movie, has copyrighted status.

Bentley is by no means a lone voice among the legal community on this issue. I caught up with Intellectual Property & Media lawyer Steve Kuncewicz (@stevekuncewicz) of HBJ Gateley Wareing after the High Court ruling last year.

“This case only adds to the need for copyright reform to deal with businesses that are looking to thrive in a knowledge economy – if this judgment holds up, then the NLA will have a monopoly that even the old system couldn’t have intended. Meltwater would have to change their business model and PRs avoid sending aggregated versions of the coverage they generate,” he said.

The NLA Web End User Licence scheme as it stands would see everyone involved in distributing or receiving links on a commercial basis (monitoring agency, aggregator, agency and client) pay a levy. It is an attempt to prop up an old business model in a very limited way.

Google Alerts is excluded from the scheme as it is free at the point of source.

The NLA scheme is supported by its newspaper members, the majority of which outlaw the commercial distribution of links from their sites in their terms and conditions. Yes traditional media needs to protect its IP and build new business models but in 2011 when those same publishers increasingly rely on their audience to freely share and circulate content it seems increasingly outdated – and is almost certainly an application of the law in a way that was never intended.

The panel discussion kept returning to the fact that we’re at a time and a place where technology and digital media is ahead of business models, and more crucially the law. In that sense next week’s case in the High Court could be the start of the reform the UK’s archaic copyright laws.

Professor Ian Hargreaves made a start when he delivered his report on the UK’s IP framework last month. The Government’s response is expected later this month.

When I caught up with Meltwater’s CEO Jorn Lyssegen after the event he was philosophical about the forthcoming court battle that his firm is leading.

“We’ll look back at this debate in five or ten years’ time and it will be a tiny parenthesis in the history of copyright in the UK,” he said.

The PRCA should be congratulated for organising tonight’s event; the views of the PR industry continue to be well represented on this issue. And Meltwater as a lone voice among clipping agencies and aggregators deserves credit for leading the challenge, as does the NLA for turning up and openly debating this issue.

The case will be heard in the Court of Appeal between 15 and 17 June. Following the Court of Appeal, which will decide on elements of law relating to the proposed licence, a Copyright Tribunal hearing will be in September will determine the fairness of the proposed terms of the licence.

You can search the Twitter hashtag #focdeb for conversation from the event and a video replay of the full debate will be posted by the PRCA in the next few days.

Enhanced by Zemanta
Posted in PR, Social media
Tags: , , ,
10 Comments »
Share this:Stumble It!Digg This!Add to del.icio.usBookmark to TechnoratiShare on FacebookSend to Reddit
December 10th, 2010 by Wadds

Meltwater expected to appeal High Court decision on NLA web licensing

I caught up with Intellectual Property & Media lawyer Steve Kuncewicz (@stevekuncewicz) of HBJ Gateley Wareing at the Somecomms awards in Manchester tonight. He’s the author of Legal Issues of Web 2.0 and Social Media, published in June.

I was keen to get his view on the recent High Court judgement that found in favour of the NLA’s web licensing scheme.

Steve believes that Meltwater will appeal the judgement and that it could result in a reappraisal of copyright law to deal specifically with the Internet. In his own words:

“Copyright law has always been about the ability to generate an income out of intellectual ability. However, there’s a growing tension between the old copyright model and the new digital world – this decision is based on a ruling from the European Court of Justice that an 11-word extract from an article can be protected by copyright as a ‘literary work’.”

“For years, it’s been argued that a headline alone can’t be protected as a literary work because it’s simply too short – try telling that to journalists who’ll argue, with some justification, that coming up with a headline that connects a piece to its audience isn’t as skilful and worthy of protection as the article as a whole.

“That said, this ruling created a dangerous precedent by taking the strict letter of the law and applying it in a way which simply doesn’t fit with the business model of a whole industry.

“Although the ruling may be strictly correct in legal terms in that fair dealing can’t be used as a defence without a proper acknowledgement (which Meltwater don’t provide), this puts the PR industry in a very difficult position if the decision holds up, but the idea that this kind of linking to a URL that contains a headline is very dangerous – the PRCA has been dragged into a major dispute between publishers who see monetisation of content as the only way to generate revenue and a news aggregation service which is seen as the enemy by UK copyright law due to the fact that they provide a commercial service rather than links provided in the public interest.

“This case only adds to the need for copyright reform to deal with businesses that are looking to thrive in a knowledge economy – if this judgment holds up, then the NLA will have a monopoly that even the old system couldn’t have intended. Meltwater would have to change their business model and PRs avoid sending aggregated versions of the coverage they generate.”

Enhanced by Zemanta
Posted in PR, Social media
Tags: , ,
4 Comments »
Share this:Stumble It!Digg This!Add to del.icio.usBookmark to TechnoratiShare on FacebookSend to Reddit
May 24th, 2010 by Wadds

NLA seeks High Court ruling on Meltwater challenge to web licensing

The NLA has played a bold stroke in its ongoing scrap with web aggregator Meltwater. It announced today that it will ask the High Court to rule on Meltwater’s opposition to the scheme.

NLA managing director David Pugh says that he wants to clear the matter up at the earliest opportunity rather than waiting for a judgment from the Copyright Commission in February 2011.

“We believe that clarity on all aspects of our web licences needs to be achieved as quickly and unambiguously as possible. The Copyright Tribunal will rule on the commercial aspects of NLA web licensing […] but the High Court is the proper place to decide on the legality of our web licences,” said Pugh.

We’ve followed this issue at Speed for the past year and whenever I hear of mates in the media losing their jobs I return to the issue.

We’ve been fooled into thinking that online content is free by the NLA’s newspaper publisher members.

Up until recently these publishers have been willing to give away editorial content online for free in a bid to secure traffic around which they could build advertising revenues. It’s a model that failed in all but a few exception circumstances.

We almost certainly won’t be having this argument in five or ten years time because by then publishers will either have gone bust or will have established robust financial models and mechanisms for protecting their content.

But for now the question remains. If business-to-business aggregators and press clipping agencies are generating an income from original content produced by a newspaper either in print or online shouldn’t they make a contribution to the original source?

We can argue over whether the NLA’s model is appropriate and how it should be applied throughout the PR supply chain but at its core the NLA is seeking to ensure that its members receive a contribution from anyone that generates income from the after market for their content.

It’s true that the income that is generated won’t prop up the ailing newspaper industry but the principle at stake is one of fairness. If you reuse or repurpose my content commercially I want a share of the action.

The NLA remains insistent that Google as a consumer-facing service is not part of this debate and that its members have their own direct deals in place with the search giant.

I struggle with this argument and am sure that it’s this issue that Meltwater will challenge if it can afford to pursue the case via the High Court. Google Alerts and Google News are almost certainly the most widely used frontline monitoring tools by agencies and brands in the UK and US.

Reblog this post [with Zemanta]
Posted in Media, PR
Tags: , , , ,
4 Comments »
Share this:Stumble It!Digg This!Add to del.icio.usBookmark to TechnoratiShare on FacebookSend to Reddit
January 22nd, 2010 by Wadds

NLA vs Meltwater: “come and have a go [...] but make sure you have the requisite authority to make your point in court”

Steve has posted an update on the NLA vs Meltwater tribunal after the NLA issued a statement yesterday and he caught up with its commercial director Andrew Hughes.

“The NLA says Meltwater’s approach to the digital licence issue is unfair. Meltwater is saying bollocks, we’ll challenge the legality and appropriateness of this. The NLA is now saying come and have a go if you think you’re hard enough, but please make sure you have the requisite authority to make your point in court.”

“It’s not going to make EastEnders scriptwriters weak at the knees, but it’s a fair debate and one that needs to be had. And one I look forward to hearing it.”

Posted in Media, PR
Tags: , ,
No Comments »
Share this:Stumble It!Digg This!Add to del.icio.usBookmark to TechnoratiShare on FacebookSend to Reddit
January 11th, 2010 by Wadds

Meltwater’s Copyright Tribunal claim vs the NLA considered

The PR industry is celebrating the NLA’s “climb down” last week over its web licensing scheme. The move followed Meltwater’s challenge of the scheme via the UK Copyright Tribunal.

The NLA said last week that it was suspending invoicing until the Copyright Tribunal reports its findings. In its submission Meltwater has asked the Tribunal to refund any fees if its claim proved successful.

“We’re delighted that the NLA has decided to suspend invoicing for its ill-considered new web licence pending the outcome of a Copyright Tribunal brought about by Meltwater,” said Kevin Taylor, Past President, CIPR in a statement.

But celebrations could be premature as the PRCA’s director general Francis Ingham recognises.

“[…] The NLA say they’ll retrospectively bill users if the Tribunal happens to rule in their favour. I think they’ll lose the case, but even if they were to win, I am extremely doubtful they would find it easy to back-date bills – I know they’d like to be a wing of the Revenue, but they’re not.”

Steve Earl has waded through Meltwater’s 30-page submission to the Copyright Tribunal. He studied media law and has considered the arguments in a post on his blog. It’s well worth a read.

He believes that the Meltwater claim rests on three points:

  • the information that Meltwater provides to its customers is “a necessary step in the act of receiving a literary work”
  • Meltwater “signposts” news that breaks online. Any copyright obligations are between the publisher and the end-user
  • URLs are not intellectual property and cannot be considered part of a copyrighted literary work

Meltwater has asked the Copyright Tribunal to rule that end-users who receive its aggregated lists of breaking online news stories are not breaking copyright law in any way.

In a comment on this blog last week Durrant’s managing director Jeremy Thompson said:

“Meltwater are challenging the NLA’s right to licence hyperlinking which they believe is against the spirit of the internet. They tried something similar in Scandinavia and failed.”

The Copyright Tribunal could take up to 12 months to adjudicate on the case. In the meantime the PR industry is celebrating last week’s announcement by the NLA as an early victory.

Francis Ingham has the last word.

“The fundamental point is this though. If they were confident of their position, they wouldn’t have blinked. But they have. And in our view, it’s because their bluff’s been called,” he said.

Posted in Business, Media, PR
Tags: , , , ,
No Comments »
Share this:Stumble It!Digg This!Add to del.icio.usBookmark to TechnoratiShare on FacebookSend to Reddit
January 7th, 2010 by Wadds

NLA suspends invoicing for web licensing costs; advises end users to make accruals

The Newspaper Licensing Agency (NLA) has written to end users of paid-for newspaper web monitoring services today in a bid to qualify the status of its newspaper web licensing scheme. The move follows Meltwater’s challenge of the scheme via the UK Copyright Tribunal – a process which could take up to 12 months.

In a statement (PDF) the NLA says that licensing scheme is effective from 1 January 2010 but that it is suspending invoicing until the Copyright Tribunal has ruled on the Meltwater claim. The NLA says that the vast majority of press cuttings agencies and aggregating services have agreed to the new licensing structure and are now licensed and that Meltwater is the exception.

“We are [suspending invoicing] out of respect for the Tribunal process and to ensure that the clients of media monitoring agencies that have signed licences are not disadvantaged in the period between now and when the Copyright Tribunal delivers its verdict,” said the NLA’s managing director, David Pugh.

The NLA is advising end-users of paid-for newspaper web monitoring services to accrue for web licensing costs ahead of the Copyright Tribunal returning its verdict.

Posted in Media, PR
Tags: , ,
7 Comments »
Share this:Stumble It!Digg This!Add to del.icio.usBookmark to TechnoratiShare on FacebookSend to Reddit
January 5th, 2010 by Wadds

Q&A with Meltwater and NewsNow on NLA web licensing scheme

Both Meltwater and NewsNow are standing firm in their opposition to the NLA web licensing scheme.

Meltwater has referred the issue to the UK Copyright Tribunal while NewsNow has reluctantly removed links to NLA member sites from its’ paid for products. Both have signed up to the Right2Link campaign.

In a statement on its web site the NLA says, “While we respect their right to take this action, we are confident that the Copyright Tribunal will recognise that the NLA’s approach has been measured and reasonable.”

The CIPR and PRCA both remain opposed to the scheme. The PRCA has publically applauded Meltwater and has said that it is giving “serious thought” as to how it should respond.

I caught up with Struan Bartlett, Chief Executive, NewsNow and Jorn Lyseggen, CEO, Meltwater at the end of last year to better understand their opposition to the NLA scheme.

Q. What’s the difference between charging for links and providing a service whereby links are aggregated and served to customer on a paid-for basis?

NewsNow: […] The Right2Link campaign is about protecting the right to link. That’s not the same thing as saying that you can never charge for access to a service that contains links to other sites – if you did that any news site with a paywall like FT.com or WSJ would soon be out of business. The right to link means not needing permission from or being charged by the linked-to website. NewsNow’s paid-for services are no different to FT.com’s or WSJ’s in the respect that they will all contain links to relevant third-party websites. NewsNow demands the same journalistic freedoms that news outlets demand for themselves.

Meltwater: If a source has a pay wall we only spider and index the source subject to an agreement with the source. It is usually an arrangement where we are allowed to index, and when a client clicks on a link to an article from this source he ends up at the subscription/log in page of the source. We basically market the content behind the pay wall, and our clients will not get access to the content unless they are a subscriber with the source.

Q. How will you adapt your service to respond to pay walls?

NewsNow: We already link to many websites that employ pay walls. We link to them exactly the same way as free-to-access web sites.

Meltwater: We have agreements in place with a substantial numbers of subscriber sources, including the Financial Times and The Wall Street Journal.

Q. Have you calculated the gross cost to your business of paying the NLA its proposed dues under the web licensing scheme?

Meltwater: The cost of the NLA license directly billed to Meltwater is £10,000. The cost the NLA wants us to enforce on our customers amounts to about £1,000,000.

NewsNow: We have and it’s not just the immediate costs of the license but the indirect costs on us of policing their scheme and the downstream uncertainty over costs and continued availability of publications in the scheme. The license purports to offer aggregators certainty but it doesn’t. In its current form it doesn’t offer any certainty whatsoever.

Q. Is the NLA eClips database a threat to your business?

Meltwater: The license terms of the alleged NLA license states that we are to disclose all client data to NLA. On the other hand NLA reserves the right to, at any time, to make the decision to directly compete with Meltwater selling their eClips Web feed directly to our clients. Meltwater welcomes all competition, also from the NLA, but then it has to be on a level playing field. We are not willing to disclose all our client data to a potential competitor.

NewsNow: The NLA hasn’t provided any guarantees that it won’t compete. There is a fundamental conflict of interest where a collective licensing body – that is insisting you give it your customer list – can’t guarantee it won’t be providing services in the market. Various clauses of the NLA licence already provide the NLA with advantages it could use to unfairly undermine industry members’ competitive positions, while providing the veneer of plausible deniability.

Posted in Business, Media, PR
Tags: , , ,
1 Comment »
Share this:Stumble It!Digg This!Add to del.icio.usBookmark to TechnoratiShare on FacebookSend to Reddit
December 17th, 2009 by Wadds

Meltwater to challenge NLA web licensing via UK Copyright Tribunal

Meltwater customers received an email this morning in which Meltwater says that it is challenging the NLA web licensing scheme via the UK Copyright Tribunal. This is likely to take as long as 12 months during which Meltwater says that it will continue to serve links to its business-to-business customers.
The full text of the email follows below:
Dear Meltwater Customer,

You may or may not be aware that the Newspaper Licensing Agency (NLA) recently decided to extend its hardcopy licensing regime to cover links to newspaper website content. The NLA believes that you (our customer) need a license from the NLA in order to click on the links you receive from the Meltwater News Service. Meltwater strongly disagrees with this and has announced today that we are taking the NLA to the UK Copyright Tribunal to challenge what we consider to be a “link tax” without legal basis.

The NLA, originally formed in 1996, was created to license and collect revenue from the copying and clipping of print media. Now the agency is attempting to enforce licensing agreements on Internet links. The NLA is targeting both companies providing media monitoring services and the customers subscribing to such services.

Meltwater is pursuing this legal action after the NLA threatened to sue any online media monitoring company who fails to sign up to its new content licensing agreement by January 1. 2010. We have been in good faith discussions with the NLA for several months now, but have been unable to come to an agreement. While Meltwater respects the copyright of the NLA’s members, the licensing scheme seeks to control the receipt of links to freely published online content, even though such rights are not granted to copyright owners under UK copyright law. Therefore, Meltwater has decided to take this matter to the UK Copyright Tribunal because we believe that the NLA’s licensing scheme has no basis in UK copyright law.

It may take 9 to 12 months for the Tribunal to come to its decision. In this period, Meltwater will continue to serve you with links to relevant news stories and we will continue to do our very best to meet your needs.

For more information regarding this issue, please refer to our press release and the FAQ in the attached PDF.

If you have any questions regarding Meltwater’s challenge to the NLA’s unreasonable licensing scheme, please feel free to contact me at jorunn.ekestad@meltwater.com.

Thank you for your understanding and continued support.

Kind Regards

Jorunn Ekestad
Director Client Relations UK
Posted in Business, Media, PR
Tags: ,
3 Comments »
Share this:Stumble It!Digg This!Add to del.icio.usBookmark to TechnoratiShare on FacebookSend to Reddit