UK businesses will have to pay a UK media license – Copyright Tribunal implications

Yes, you read the title to this post right. Are you in business? In the UK? Online or use email? Then you apparently owe the Newspaper Licensing Agency some money.

I first expressed my interest in an increasingly aggressive Newspaper Licensing Agency in a 2007 blog post suggesting a more appropriate title for the body – Newspaper Licensing Anachronism. Please note that I have nothing against the monetization of copyright content (hey I'm an author!), I just think the way the NLA conducts its business is all rather 20th Century. And this week, we’ve had a Copyright Tribunal Interim Decision. [The square brackets below reference this decision.]

The NLA’s relevance in the 21st Century has been tested, as far as the law is open to interpretation, by the innovative media monitoring company, Meltwater. Actually, the description the Copyright Tribunal uses to describe Meltwater, or rather Meltwater’s witness, is “unnecessarily combative” [35]. Well, talking of combat, the latest battle in this war concluded yesterday.

JP GlittenbergThe result is a mixed affair, with neither the NLA or Meltwater coming out on top. I’ve just recorded an interesting conversation with Meltwater’s JP Glittenberg about this week’s decision... do take a listen, particularly if you work in media, PR or copyright.

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Now the Tribunal is quite restricted: by law; by precedent; by previous adjudgements in this ongoing case; by its own terms of reference. Generally, on reading the entire 60-page decision, I find the Tribunal to be most diligent, but given my background, I get a bit uptight every time I read something that indicates a lack of technical understanding of the Internet and the World Wide Web (yes, they are different things!)

Despite some stumbles however, they get somewhere interesting in the end. In fact, they end up showing up UK copyright law for the shambles it is.

Here’s what the decision says about the description of the content forwarded by Meltwater to its customers: "The description consists of the headline plus the text extract. Mr Carr [QC for Meltwater] referred to the text extract as a ‘snippet’. The term was being used to minimise its significance but for present purposes we are not concerned with that." [55]

No, the term was not being used for such reason. The term was being used because it’s the term used! As in fact the Decision appears to recognise later [127].

Interestingly, the Tribunal dismisses the similarity of a Meltwater service with Google Reader: “It seemed to us to be of peripheral relevance and we will ignore Google Reader.” [59] So just like that, the Tribunal ignores RSS readers. Hey guys, the last S there stands for syndication, as in the circulation of potentially copyright material. Kinda relevant?

One of my favourite asides from the Tribunal is this: “All three providers allow the emails sent to be forwarded on to other people.” [68]

The ‘three providers’ are Google, Meltwater, and traditional media monitoring companies, and I just love the idea that any of them could disallow forwarding of the emails they send. How might they do that exactly?

But the last point here on the Tribunal’s technical naivety is central to one of the major ramifications of this whole caboodle. On discussing whether Google News and Google Alerts should require a business license for business use, it writes:

“One could have taken the view that Google was a purely consumer service and therefore somehow no question of business use arose but, as we have found, it is plain that there is business use of Google News and Google Alerts. … Moreover we do not regard the argument that this licensing would not be practical as realistic. There would be all kinds of ways of addressing that if there was a will to do it. The Alerts service would be very straightforward to deal with since it only works once a user has given Google an email address to which Google should send the alerts.” [129]

The idea that the Tribunal thinks we all have one email address and that such addresses are easily categorised as business or non-business in nature makes me laugh, and cry. The Tribunal is clearly wrong here. There are not “all kinds of ways” of addressing this bar state level Internet monitoring for this purpose, which surely goes way beyond the intended consequences of copyright law. (We're getting into the realms of the serious side-effects of ACTA here.)

Much of this Tribunal hearing pivoted on ascertaining whether Meltwater was more like Google, or more like the ‘traditional’ press monitoring companies. Like Google, Meltwater does not employ human filters of its analyses. Like the traditional companies, Meltwater charges for its services (although, as the Decision notes, Google is not a charity). And so the list goes on, for very many pages of the decision.

Meltwater has therefore forced the NLA’s hand. Previously, the NLA had weaseled out of any implication that they should license Google and Google’s end-users, but by Meltwater pointing out the similarities in its services to those of Google, the NLA’s members had to give it the mandate to pursue Google:

“Before the High Court the NLA had stated that it had no mandate to license users of Google News. However it emerged before us that the NLA has been mandated to license systematic use of Google News / Google Alerts by commercial end users. Although it has not yet done so, the NLA intends to seek to require licences from commercial end users of Google Alerts who forward on the emails received within their businesses.” [96]

The important term there is “who forward on the emails”. Why police just the forwarding of emails? And that’s a question the Tribunal raises:

“The NLA argues, while a member of the public is obviously entitled to visit a newspaper’s website and read what is there and in the course of doing that make copies of what is on the site, commercial use of the newspapers’ websites is not permitted. ... However it does not explain why the NLA has no mandate to license normal business use of Google News and Google Alerts. It is hard to see how the logic of the NLA’s position can avoid a conclusion that such use is not presently permitted either albeit that it takes place.” [128]

“As we understand it the NLA’s position is that commercial use of Google News and Google Alerts is not licensed. That is why the NLA have a mandate to license aspects of the Google News and Google Alerts service (i.e. link forwarding). However it does not explain why the NLA has no mandate to license normal business use of Google News and Google Alerts. It is hard to see how the logic of the NLA’s position can avoid a conclusion that such use is not presently permitted either albeit that it takes place.” [128]

And so there we have it. Media companies around the world have struggled with business models since the advent of ubiquitous Internet connectivity, but for UK media companies the NLA is riding to the rescue. The NLA has no choice now but to secure a license from every single UK business who might, during the course of their business, stumble across its members’ copyright material online, or indeed run the risk of having anyone forward a link to such material in an email. God forbid. I mean really, how dare someone invent these naughty hyperlinky-thingummies.

There’s a reason the government commissioned the May 2011 review of the state of UK intellectual property law, the Hargreave's report. It concludes that laws designed more than three centuries ago with the express purpose of creating economic incentives for innovation by protecting creators’ rights are today obstructing innovation and economic growth. The NLA appears to be a fine exemplar. For my part, I’d rather the NLA championed the Hargreave’s report’s conclusions and sought ways to advance copyright law than invest its time and energies tying the UK media and web communities in 20th Century knots.

So that's the news for all UK business. Any news for the PR profession?

Well firstly, the Tribunal's interim decision has placed some caps on the NLA's tariffs and future increases, and I discuss these with JP in the interview referred to above. More tangentally, each and every PR consultant could soon get a bit more famous.

In a previous ruling, Justice Proudman insists [143-7] that just because a webpage might not clearly identify the author in machine readable format Meltwater's obligation to determine and attribute the author is not waived. Identification is not subject to technical possibility she states, but to reasonable human possibility apparently, despite Meltwater’s business being predicated on automation (and Google’s come to that).

Section 9 of the Copyright, Designs, and Patents Act 1988 (CDPA) asserts a definition for author: "In this Part ‘author’, in relation to a work, means the person who creates it."

This made me think of all those staff writers whose work is then attributed to a star journalist. Then I thought 'churnalism' and the increasing trend of publications / journalists to cut and paste from press releases such that the signficant part of the resulting "work" was actually created by the PR exec. I wonder, if the CDPA is considered so uncompromising in its requirement to attribute the author as Justice Proudman suggests, despite the link to the article in question, whether the media isn’t equally obliged to interpret its definition of author with equal gravitas?

Expect to see NLA members’ “work” attributing PR execs some time soon.

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