Summary

A web end-user licence was required to lawfully use and receive content in the form of clippings and headlines sourced by media monitoring organisations that trawled a multitude of websites using search terms selected by the end-user. That was because the copies passed on to the end-users were not covered by the web database licences issued to the monitoring organisations. The end-user licence was only needed where the content passed on to the end-user constituted a substantial part of the original work.

Facts

The appellant professional association (D3) appealed against a declaration ((2010) EWHC 3099 (Ch), (2011) ECDR 10) that its customers required a web end-user licence from the respondents, a licensing organisation (C1) and a number of newspapers (C2), in order to produce and/or use copies of their newspaper content. D3 represented the interests of public relations consultants and was a defendant in proceedings instigated by C1 and C2. The other defendants in those proceedings (D) provided a media monitoring service to customers, most of whom were D3's clients, using a "spider" computer programme to access website content. The computer programme tracked the content, enabling the end-user customers to access the headline, opening text, and an extract from articles matching their search terms. C1 managed C2's intellectual property rights. In 2009 it had introduced a scheme whereby media monitoring organisations such as D were required to purchase a web database licence to access C2's website content. In 2010 it introduced a requirement that public relations consultants such as D3, and end-users of media monitoring services, have a web end-user licence. D thought the licences were unreasonable and maintained that it could lawfully continue its business without them. The court declared the licences necessary on the basis that (i) article headlines were capable of being literary works independently of the article to which they related; (ii) the article extracts were capable of being a substantial part of the literary work consisting of the article as a whole for the purposes of the Copyright, Designs and Patents Act 1988 s.16(3)(a); (iii) the copies made by the end-user's computer were an infringement of C2's copyright and no such copies were permitted by s.28A or s.30 of the Act. D3 argued that the declaration was wrong in law because it necessitated double-licensing. They submitted that in an online environment, a licence to D encompassed the inevitable copies which would be made when D's service was received by the end-user.

Held

(1) Under s.1(1)(a) of the Act, a headline had to be both "original" and "literary" in order to constitute an independent literary work, University of London Press Ltd v University Tutorial Press Ltd (1916) 2 Ch 601 Ch D considered and Ladbroke (Football) Ltd v William Hill (Football) Ltd (1964) 1 WLR 273 HL followed. The decision in Infopaq International A/S v Danske Dagblades Forening (C-5/08) (2009) ECR I-6569 ECJ (4th Chamber) had not qualified that test, Infopaq followed. The judge below had plainly been correct in her conclusion (see paras 16-22). (2) Each time D produced an edition of its news for a client many extracts were taken from many publications, sometimes several from the same article. It was inevitable that some would constitute a substantial part of the original. The judge had been right to conclude that a declaration to that effect was justified. The real issue, however, was whether the relevant parts of D's news, comprising both the headline and the extracts, infringed the publisher's copyright in the original work when copied by D's customers (paras 23-29). (3) It was clear from Directive 2001/29 recital 33 that acts of temporary reproduction were those occasioned by the voluntary human process of accessing a webpage. Therefore s.28A of the Act would not provide even a limited defence to the claims of infringement to which D's business was likely to give rise. The judge had been correct to find that a person making a copy of a webpage on his computer screen would not have a defence under s.28A simply because he had been browsing (paras 30-35). The judge had also been right to reject the fair dealing defence on the ground that the dealing was for commercial purposes and it encouraged end-users to infringe C2's copyright (paras 36-41). (4) The receipt and use of D's material by D's customers constituted an infringement of C2's copyright. None of the defences advanced by D3 absolved the end-user from liability; only the possession of a web end-user licence could do that. A web database licence did not authorise the end-user to make any copies on his computer; those copies were the consequence of the end-user opening the news email from D and/or clicking on the link it provided. The copies were not the same copies as those sent by D and the double licensing contention was therefore unmaintainable (paras 44-47). (5) The declaration, although upheld in substance, needed to be slightly amended because not every recipient or user of D's service would inevitably infringe copyright so as to require a licence (para.48)

Appeal dismissed