Intellectual Property (Law) 11



IntellectualProperty (Law)

Theissue of subsistence copyright in newspaper headlines has of recenttaken a turn with the verdict by the English Court of Appeal in the‘Meltwater Holdings BV &amp Ors v Newspaper Licensing Agency &ampOrs [2011] EWCA Civ 890 bringing out an extra liberal outlook by theUK Courts towards the writers of tabloids than has recently been thecase in country such as Australia. As such those who do print mediabusiness in the UK should be very much aware of the divergencebetween the UK and other states, especially when making use ofcopyright works, for instance, headlines and other similar titleinformation available on line, that the UK courts will most likelyfind copyrights subsists in the short and simple articles than otherstates would find. Thus, this paper will examine a case involved increation of different materials by Meltwater, a media monitoring andanalytics service examining articles published in English newspapers,accompanied by headlines of the original articles showing instancesof copyright infringement.

Headlinesas Original Literary Works

Indiscussing copyrights, the issue at hand will examine if therespondent reproduces headlines and creates abstracts of articles inthe applicant’s newspaper, check if the headlines constitutescopyrights infringements, and whether the copyright subsists inindividual newspaper headlines and cases relating to copyrightprotection of headlines (Pila 2012).

Courtfindings/ Ruling

TheNewspaper Licensing Agency (NAL) and others v Meltwater Holding BVand others[2011]EWCA Civ 890 case, the Court of Appeal upheld the High Court positionby Proudman J. The NLA sought assertions to copyright infringement bythe commercial end users, in this case of Meltwater’s mediamonitoring services, an organization relying upon website scraping.According the ruling by the Court of Appeal, amongst other thingscopyright has the capability of is part of newspaper headlines, withshort articles being substantial parts of the articles for thepurposes of copyright violations (Truyensand Van Eecke 2014).According to the court the decision by CJEU in Infopaq v Danske doesnot qualify the longstanding English test of originality,nevertheless, imposing a new question of whether infopaq a newdefinition of a substantial part to the English law (Mayner2014).

Accordingto the rulings of the court, copyrights can subsist in headlines inthe form original literary work (Bail II 2011). In line with this,the judge had accepted evidence that newspaper headlining can consistof considerable skills in their creation. As such they have thecapacity to be original in the sense of being independent literaryworks, as they might be observed to original from the angle that theauthor’s independent creation (C-5/08 Infopaq v Danske). In linewith the ruling by the judge, the court of appeal was agreementconfirming that the test related to the issue of origin and not aprerequisite for innovation or merit, as such it does not qualify thelongstanding English case law over the test of originality (Grassie2011).

Secondly,extracts from articles may be a considerable fraction to an originalwork (Harms2013).As such copyright is violated by the adaptation of considerablecomponent of the original work, from where the article was initiallygotten from. This is especially true in applying the test fromInfopaq, enquiring whether the extract entails elements that areexpressions of intellectual creations by the author to the originalarticle (Bail II 2011). According to the preceding judge, in manyinstances such extracts contain substantial parts from the originalarticle from which the extract came from. This is true even ininstances where previous English cases are used enquiring if thecases are an unfair appropriation to the author’s labor put in theestablishment of the original work.

Endusers cannot rely on a defense set under s28A CDPA 1988, whichrelates to incidental temporary copies. According to the AppealCourt, the defense under s28A CDPA could only be applicable to actsof copying by the end user who accesses the Meltwater web, with theaim of viewing the Meltwater news, when visiting the publisher’ssite to view the original document (Davis2012).As such the High Court judge established that the making of such acopy is to enable the end user to read news by Meltwaters, provingthe making of copies is not an essential or fundamental part of atechnological process, but rather the end to which the process isdesign to achieve. In addition, there was clear economicsignificance, as it is product, which the end users have subscribedto, as such conditions for a successful defense under s28A had beenmet, and the court of Appeal agreed with the finding (Hill2013).

Nevertheless,the end consumer cannot rely on the defense of a fair dealing underthe s30 CDPA. As such the Appeal Court backed the ruling by the HighCourt judge that end users cannot rely on defense fair dealing,making the argument absurd. From this the court established end usersneither criticized nor reviewed parts of articles put up byMeltwater. In addition, the Appeal court ruled that Meltwatersdealings were not fair since it was for commercial purposes,encouraging the intended end user to violate the publisher’scopyright (Flint 2013).

Accordingto the database regulations, the High Court judge found that, in thefirst case scenario there was no violation of the in the arrangementof the structure by the publishes website, as data base on the case,suggesting there were text extracts to be part of substantial partsof the effort going into the structure and arrangement of the articlewithin the website (Waelde,Laurie, Brown, Kheria, and Cornwell 2013).In addition, the Appeal Court rejected augment based on s19 (2)copyrights and rights of database regulations 1996, consequently ,making conditions of the users of the publishers’ website invalidsince they averted lawful users utilizing parts of contents in thedatabase. The findings of the court were such that this section wasonly involved in actions which were in a manner to breach the rightsof the data base, and not those touching on the literal work. Inaddition, users who were not logged onto the site lawful users andcould not at any circumstance obtain benefits of the section 19 (2).


Accordingto the preceding High Court judge justice Proudman, a headline orshort extract from a text will easily amount into to a substantialpart of a copyright work. However, note that the court relied uponinfopaq, in stating that the quality of the extract part is animportant part (Speightand Darroch 2013).Therefore, should the work reflective of the authors reflectivecreation then it is likely to amount to substantial partial violationof copyrights. Nevertheless, it is still notable that the decision ismore or less in line with aphorism of Lord Hoffmann in NLA limited vMarks and Spencer plc. Under the review, Infopaq simply attested theprevious position under the UK law put cross by Hoffmann. As such theHigh Court judge comments on the effects of Infopaq, stating even theslightest bit of the original content is protected under thecopyright act, as long as it shows some stamp of individualityreflective of the core writer/ creator of the article. As such, thecourt might have as well concluded that without a license the enduser might as well be in violation of publisher’s patent (Griffiths2013).

The court also has the mandate of verifying if the newspaper’scopy, designs, and patents acts (CDPA) had been violated. Accordingto the finding s of the High Court, 3 database rights had beenviolated. In line with these, the court held that any copyingundertaken by end-users was not copying of the arrangement of thedatabase as such the judge did not find database violations. Unders.28 of the CDPA there are exemptions for temporary use, brief and anallowance for technological copying. As such the judge suggested thatin line with the infopaq, temporary copying margins had to beinterpreted narrowly, thus, in the incidence (s.28) the court wouldnot identify the violation (Smartt2014).

Nevertheless,under section 30 of CPDA there is an exemption for fair dealing inrelation to either critics or an evaluation and in instances where itused to report current events (Smartt2014).However, acknowledgement must be given for both instances. As theHigh Court judge notes in light of Infopaq, such expectations must beinterpreted narrowly. Therefore, under specific expectations, themagistrate’s decree was that he could not fit actions of theconsume under criticism and review and reporting current issues.

UKCopyrights Laws Comparison with Other States (Australia)

InAustralia for instance, it is even harder for a publisher of onlinematerials to protect their copyright works (George2014).Previous cases such as the Fairfax case has rendered in Australia togo without protection from copyrights since they are tooinsubstantial or too short to meet the criteria of literary works,regardless of efforts put across to come up with the work. On theother hand the UK things are rather different as headlines areprotected by the copyright protection especially where evidence isoffered for skills required in headline creation. As such the caseincidence by Fairfax Australia and Meltwater UK bring to light thedifferences in approaches take in the different states in balancingpublic interests and in moves intended to protect intellectualproperty rights. Other ways used in the protection of short worksincluding registering slogans or by-line as trade mark, or throughclaims of misleading or unreliable conduct, however, this does notcome in handy in assisting publishers of online materials.

Inthe Britain, the NLA manages publishers’ intellectual rights bymeans offering licenses to those who want to copy the member’snewspaper content (McDonagh2011).As such Meltwater News United Kingdom operates an online mediamonitoring services on behave of the publishers ascribed to thecompany. The software checks for users utilizing the spider programin scraping content, which covers headlines and extracts beginning ofthe first 256 characters of the article under review. However, notethat the UK case contained strong evidence of connections betweeneach headline and corresponding articles content. As such the courtwould easily find if the headline is part of the mentioned work.According to the High Court judge statement in her ruling, she statedthat in her opinion headlines had the capacity to be literary work,either on independent grounds or as part of an article they areattached to. The judge went ahead to give an example of the evidencepresent from the Daily Mail that were independent work with anInfopaq test (Charnley2011).

Headlinesas Intellectual Property

Accordingto Aplinand Davis (2013),the factions of the headline is that of being the title to a givenarticle, in addition, it plays the part of being a brief statement ofthe subject, appearing in a compressed form length wise, for example,a book title. As such it is too small to be literary work, as a logohas been held to minor to be a piece of artistic work. Nevertheless,evidence directed to a particular headline, or title, extensive to aparticular significance can be sufficient to warranty to issue itwith a patent protection. Netanel(2008) where resource ideas have been borrowed from the media say anewspaper, the citation of the paper requires not just a reference tothe name of the newspaper but as well a quotation of the headline. Inthe authors view, published headlines under copyright protection, ittips the balance to far from the interest of the public, touching ontheir freedom to refer to articles using their headlines.

Courtof Appeal Decision

Thecourt of appeal terms this as a matter substance, where by the actualwork has subsists. Therefore, in line with the court, individualwords alone have a sufficient degree of literary quality to attractcopyright protection (George2014).The decision taken by the court is that, patents can only be in newheadlines separate from patents existing to guard the article that itis affiliated to as such the use or copying of headlines can betermed to be violation of patent rights. This is in the sense thatthe patent right in the heading is a reflection or representation ofthe skills and labor put forth in the creation. In addition, most ofthe time headlines are produced by editors independently from theauthor which is an indication of literary work independent from thearticle disserving patent protection (Grassie2011).

Secondly,the issue of patent violation in the senesce of whether thereproduced work holds copies of whole or partial original work.According to the Infopaq, the European Court of Justice clarifies thematter that the assessment check for the content of intellectualexpressions to the author’s original work. Therefore, the courtheld that using an extract from a news article results to a breach ofthe patent right of the full article, while a hyperlink may violetthe same if it has a headline or an extract to the article. TheAppeal court did not necessary examine every headline used todeliberate on whether Meltwater was in violation of patent rights,rather it examined services provided by the company likely to causeviolations on a habitual basis, thus, it required licensing (Vincentand Vickery 2010).


Inconclusion from the NLA v Meltwater, the High Court judge Proudman J.brings up some important points, first, patents subsistence calls fora height of innovation based upon the writer’s logical conception.Secondly, substantial part should be based on qualitative test whichfocuses upon whether individuality is present in the extracted partnevertheless, it does not mount to change of the law. Finally,exceptions to copyright have to be interpreted narrowly. With thatthe Appeal court affirms to High Court ruling, and clarifies that thejudgment does not interpolate to every user of Meltwater breachingpatent rights.


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