This article is about the effect of media monitoring service on infringement of the copyright in newspapers in the case of customers who do not have a “web end-user licence” to use and receive those headlines and extracts from that media monitoring service.
The media monitoring service consisted of the supply of reports which included the headline, opening text and an extract from articles which matched terms selected by the customer. The media monitoring provides customers with copies of headlines and extracts from articles on newspaper websites.
In this action the claimants (a number of newspaper publishers and the NLA, a company that managed some of their intellectual property rights) sued a professional association representing public relations providers named PRCA.
The legal questions are:
-Is a newspaper headline capable of being a free-standing original literary work? Is the text extract constituted a “substantial part” of the article as a literary work? Do the PRCA and its members need a web end-user licence from the NLA?
Mrs Justice Proudman used the test aid out by the Court of Justice of the European Union in Infopaq for answering. According to Infopaq case law “no distinction should be made between part of an article and the whole provided that the part contained elements which were the expression of the author’s intellectual creation”. Although the judge looked at the Information Society directive which made it clear that originality and not substantiality was the test to be applied to the part extracted.
On this basis the judge answered the question as follows:
According to the judge “some headlines were indeed capable of being independent literary works. However, even those that were not independent legal works still formed part of the articles to which they related”. She added that “the quality of the extracted part and the level of the author’s skill and labour which the copier has appropriated, is decisive not the amount extracted”. There is a prima facie copyright infringement when customers of the media monitoring service made copies of the headline and text extract when viewing the report.
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