The UK Court of Appeal issued a ruling upholding the original High Court judgement in favour of the NLA in November 2010. The court confirmed that commercial consumers of web content need a licence from the publisher to view content.

Web licences
In the case of UK newspaper publishers licences are issued by the NLA. Conceivably other licensing agencies could be created to police niches on the internet where web content is shared for commercial gain.

The Court said that the technological process of displaying a web page on a computer is not exempt from copyright.

“This positive interpretation of UK copyright law provides legal clarity and certainty for all players in the market,” said David Pugh, managing director, NLA.

“Publishers can be sure of fair royalties for the use of their content, suppliers of paid-for online monitoring services will benefit from a level playing field and clients of such services know that their licence provides a simple way to guarantee compliance with the law,” he added.

Meltwater and the PRCA are seeking permission to appeal this decision to the UK Supreme Court.

Personal versus commercial
The issue remains between commercial monitoring and personal usage. Google as a consumer search engine falls outside the NLA licence scheme.

“The NLA has dodged taking on Google because of size. Any solution that excludes Google is ignoring its massive presence in the industry,” said Ingham.

The story will continue at the Copyright Tribunal in September when Meltwater will seek a ruling on the fairness of the NLA’s licensing scheme.

“We are confident that the Copyright Tribunal will rule the NLA licensing scheme is over-reaching and unreasonable,” said Jorn Lyseggen, CEO, Meltwater.

In the meantime if you’re an agency or company that uses a commercial monitoring service such as Meltwater you’d be well advised to set aside fees for when the NLA comes seeking backdated settlements.

“We’ve advised PRCA members to set aside fees from the outset,” said Ingham.

You can calculate the likely cost to your organisation by using the NLA Web Fee Calculator. By my reckoning a 10-person agency sharing 100 links a week should expect to pay £300 per year, while a 50-person agency sharing 500 links a week should expect to pay £1,260 per year.

Content costs but who pays?
The root of the challenge to the NLA licensing issue lies in its newspaper publisher members fooling us into thinking that their content is free on the internet. In the 90s business models were set aside in the race for eyeballs as newspaper publishers made their content available for free.

Steve Kuncewicz, social media and intellectual property lawyer at HBJ Gately Waring LLP has gone further in media interviews today. He told The Drum that the ruling is a bid by the newspaper industry to retain revenue while the traditional publishing model fails.

Ultimately this on-going case must surely hasten a review of intellectual property law in the UK. It’s a point that Kuncewicz makes to The Drum.

“There’s a widening chasm between how we use the internet and the law. 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,” said Lyseggen.

Speed is a Meltwater customer and a member of the PRCA.

Related blog posts:

• NLA ruling “absurd” says Cambridge IP Professor as Meltwater and the PRCA head back to court – 6 June, 2011
• Tackling copyright confusion and why Google isn’t a British firm – 20 May, 2011
• Meltwater expected to appeal High Court decision on NLA web licensing – 10 December, 2011
• NLA’s High Court ruling contradicts Sir Tim Berners-Lee’s vision of net neutrality and an open web – 29 November, 2011
• NLA vs Meltwater: See you in court – 28 October, 2011
• NLA seeks High Court ruling on Meltwater challenge to web licensing – 24 May, 2011
• Links: a means of distribution, not an economy – 18 January, 2011

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.

The NLA’s aim is to seek legal clarity on its licensing for the after market of web content. It believes that an agency or client that receives headlines, summaries and URLs, from a web aggregator or monitoring agency such as Meltwater, should be covered by a NLA licence.

Meltwater has the backing of the PRCA and believes that the NLA’s proposals for a web licence are flawed. The case is due to be heard sometime after 8 November.

If the NLA is successful the High Court case will be followed by a hearing at the Copyright Tribunal in February 2011, where Meltwater is seeking to establish whether or not the NLA’s web licensing scheme is fair to newspaper publishers and organisations that participate in the after market for web content.

Some newspaper publishers aren’t hanging around for either verdict. PaidContent reported in July that a number of newspapers were taking direct action to stop Meltwater from aggregating their content.

“The UK’s most popular online newspaper website has joined News Corp.‘s The Times, The Sun and News Of The World sites in barring the online media monitoring service Meltwater from crawling its articles, with a court action pending between UK newspapers and the company.”

Digital disruption
At Speed we’ve followed this issue for the past 12-months. It’s symptomatic of the state of the media and the disruptive nature of digital publishing. 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 has failed in all but a few exception circumstances.

The premise of both cases concerns what is free and what is fair. The media has hidden from these issues for too long. This High Court case is the thin end of the wedge and will surely flush out what the industry must confront.

Content costs
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 from the NLA’s web licensing scheme won’t prop up news print but the principle at stake is one of fairness. If you reuse or repurpose my content commercially I want a share of the action.

Try arguing against that point with a journalist that finds themselves out of work as publishers attempt to square-up to falling ad revenues and reorganise around a multi-channel proposition.

Google
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’m sure that this is an issue that Meltwater will challenge in 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.

Related articles

• Interview: Meltwater CEO Lyseggen Will Fight UK ‘Link Tax’ On Two Fronts (paidcontent.org)

Content from News International titles has been withdrawn from media monitoring agencies and aggregator services and won’t be available until the launch of the Newspaper Licensing Authority’s (NLA) eClips platform, expected sometime in September.

NLA channel partners such as Cision, Durrants and Precise will provide their clients with News International content via the eClips platform as part of their monitoring services.

Meanwhile, the FT has pulled out of the NLA scheme and has launched its own digital searchable archive. In future media monitoring agencies and their customers will need to purchase a licence direct from the FT once their current NLA licence expires.

Is this the thin end of the wedge for the demise of the ‘pay once and you’re protected’ approach to media copyright management?

“The FT has been developing a direct licensing philosophy for some time. [It] wants a direct customer relationship, so that whilst the channel (aggregator or press clipping agency) may charge for its service, only the FT can charge for its content,” said David Pugh, CEO of the NLA.

“Collective licensing is valuable for publishers and clients alike – but the FT feels that it has a unique position as a global brand with niche content and expertise – and their view is that this is best managed by them directly,” he added.

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.

The NLA’s own estimates put annual revenues for the scheme at £2 million. Meanwhile, the Guardian alone is reportedly losing £36m per year, or £100,000 per day.

Under the NLA’s leadership the newspaper publishing industry believes that it should benefit from any income generated by third-parties that sell products or services based on content generated by NLA members.

The Financial Times and The Times have opted out of the scheme and plan to implement their own independent licensing models.

The NLA scheme has seen aggregators, clipping agencies and PR firms subject to a levy from the start of the year. But the NLA isn’t charging Google claiming that it is aiming its scheme solely at business-to-business users.

The PR industry body PRCA and clipping agency Meltwater are challenging the NLA’s scheme via the UK Copyright Tribunal with the claim that effectively charging from links is an affront to democracy and the openness of the web.

Here’s my interview with Vikki in full.

The action by The Times to block News Now and now Meltwater is another example of a publishers setting out the battlelines in the fight to challenge the business model of aggregators and online clipping agency. The move will inevitably hurt Meltwater. Clients rely on it to provide a comprehensive service and a fragmented monitoring service isn’t helpful if you are charged with managing the reputation of a business.

But it’s odd that The Times is taking this direct action against Meltwater and News Now yet News International is not exercising the NLA’s new web clipping license despite being an NLA member. It shows the ongoing turmoil in publishing industry and it attempts to shift from print to online.

The publishing industry is in real pain as it attempts to monetise its content online. Ad revenues have collapsed and circulation figures are down. Publishers are seeking to create new business models around their content online and believe that third parties that generate income from aggregating and monitoring their content should share the income they generate.

Attitudes will change over the next 18 months as newspaper publishers raise paywalls in front of their sites – and news articles are replaced by summaries in Google News searches.

“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.”

News International is part of the NLA but is one of the few newspaper publishers that have not signed up to the NLA’s web licensing scheme. But the fact that the move follows NewsNows’ criticism of the NLA and its backing of the Right2Link campaign cannot be a coincidence.

Jeff Jarvis writing in The Guardian today said that he believed that News Corporation was foolish to opt out of the link economy. He’s right but for the wrong reason. Links aren’t an economy.

Broadstuff has been quick off the mark with a Jarvis rebuttal:

“The only people making money out of the Link Economy are either writing about it and selling good old fashioned (non linkable) paper books, or […] aggregating other people’s content without paying much […] for it and then setting up low cost display ads against it.”

Links are a means of distribution. Here’s Broadstuff again:

“It’s just a bloody distribution channel, and it’s a low value one for low value media at the moment, unless you can be an aggregator of very large amounts of low value transactions.”

“In the end, this fight is over control. News Corporation is desperately trying to maintain its control over access to and packaging and pricing of information that now flows freely from many sources.”

“[…] Its about making money. And if other ‘New Media’ had worked out where Rupert was truly wrong we’d see a host of organisations rushing ahead.”