1709 Blog: for all the copyright community

Tuesday, 14 February 2012

Meltwater: Copyright Tribunal ruling out today

The 1709 Blog has received this afternoon two items of interest to those who have been following the Meltwater saga (see eg earlier posts here and here).  The first is a link to the interim decision of the United Kingdom's Copyright Tribunal, which was released today.  The second is an unsurprisingly upbeat media release from law firm Berwin Leighton Paisner LLP, which had the good fortune to be instructed by the winning party, the Newspaper Licensing Agency (the NLA). According to the media release,
"In response to the Copyright Tribunal’s interim decision in the case of Meltwater Holding v the Newspaper Licensing Agency, David Pugh, Managing Director of the Newspaper Licensing Agency, said:
“We welcome today’s decision which follows two court cases [Chancery Division here; Court of Appeal here] confirming the legality of licensing [it's not licensing per se that is at stake -- that has never been in question. Rather, it's one specific situation in which the NLA maintained that a licence was necessary]. 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.  
We think that all concerned will welcome the certainty that the Tribunal has provided, and we look forward to working with the newspapers, MMOs and our customers to implement the licence as quickly and as smoothly as possible”
Simon Clark, Head of Intellectual Property at Berwin Leighton Paisner, who led the team representing the NLA and the newspapers, added: "This is an interim decision - the parties now have two months in which to try to agree a few outstanding issues, after which the Tribunal will issue its final decision setting out the exact wording of the two online licences".
Today's ruling, which runs to over 260 paragraphs plus appendices, will take a while to digest. Meanwhile, the dispute is still to receive the benefit of an analysis from the Supreme Court.  Nor -- and this may be a possibility given that the courts in Slovakia have approached a similar dispute in a very different way -- has there been a reference to the Court of Justice of the European Union.

1 comment:

James Firth said...

Paras 31-33 of Directive 2001/29/EC sets out clear thinking in respect of temporary copies.

In particular:
"(33) The exclusive right of reproduction should be subject to an exception to allow certain acts of temporary reproduction, which are transient or incidental reproductions, forming an integral and essential part of a technological process and carried out for the sole purpose of enabling either efficient transmission in a network between third parties by an intermediary, or a lawful use of a work or other subject-matter to be made. The acts of reproduction concerned should have no separate economic value on their own. To the extent that they meet these conditions, this exception should include acts which enable browsing as well as acts of caching to take place, including those which enable transmission systems to function efficiently, provided that the intermediary does not modify the information and does not interfere with the lawful use of technology, widely recognised and used by industry, to obtain data on the use of the information. A use should be considered lawful where it is authorised by the rightholder or not restricted by law."