Meltwater case upheld on appeal

The Newspaper Licensing Agency Ltd and Ors. v Meltwater Holding BV and Ors [2011] EWCA Civ 890 (27 July 2011) is an appeal from the judgment of Mrs Justice Proudman which I outlined here a while ago - November last year, indeed! Where does the time go? The Court of Appeal agreed almost entirely with her, the only difference being over the scope of the order to be made, which the Court considered should allow for the fact that some of the use made by the defendants of the claimants' material might not amount to an infringement of copyright.

The case asks whether a news aggregation service, and its clients, requires permission from the owners of copyright in the stories to which they are distributing links. The NLA had drawn up a new licence to cover this eventuality, but Meltwater's clients had shown little interest in taking one. The judge decided that members of the PRCA did require licences, despite arguments that the material reproduced was not of sufficient substance to amount to a literary work, that the use was fair dealing, that charging a second time for essentially the same act was unfair, and other things.

The first instance judgment explored the implications of Case 5/08, Infopaq in the Court of Justice, which had appeared to set some high standards for copyright protection under the information society directive - requiring that any literary work be the author's own intellectual creation. The Court of Appeal tells us that this refers to the origin of the material, not the level of originality required - which would be something like a novelty test. That, I think, is a shame, because a satisfyingly high originality test would be a great way to rein in excessive claims to copyright protection.

It's reported that Meltwater are contemplating an appeal to the Supreme Court.