A business user generally requires an appropriate NLA licence where it receives a media monitoring service containing NLA-represented online or print publisher content, including headlines, text extracts and links. This position is well-supported by UK and EU case law.
This can apply where the service provider delivers or makes available media monitoring material in a way that involves copying, storing, displaying, forwarding, downloading, printing, internal redistribution or archive access.
NLA licensing is not limited to the use of full-text articles or PDFs. It is based on the copying of publisher content or use of our database of publisher content, not on clicks, page views or whether a user accesses the full article. Where copies of publisher headlines, text extracts, metadata or links are made or supplied as part of a media monitoring service, an appropriate licence is required.
The fact that some individual headlines or extracts may not be protected by copyright does not mean that a commercial service can send headlines and/or text extracts without obtaining the necessary licence to do so. The courts have recognised that headlines are capable of protection as copyright works in their own right, that others may form part of the copyright in the article, and that short article extracts may reproduce a substantial part of the original copyright-protected work.
Where a media monitoring organisation creates, stores, indexes or makes available client-specific monitoring material, including headlines, extracts, metadata, saved searches, alerts, clips or links, the service is likely to involve licensable acts by the media monitoring organisation and/or the client.
Where the service provider relies on NLA for the supply of content or data, the applicable licence terms must also be considered. Those terms cover specific use cases and utilising NLA database content outside of the licence parameters is not permitted.
Legal background
The legal basis for licensing online media monitoring services was considered in the NLA v Meltwater litigation.
The relevant monitoring service supplied users with a hyperlink to each article in the form of the headline from the article and a link to the article as it appeared on the publisher’s website, the opening words of the article and an extract showing the relevant keyword in context.
The case concerned Meltwater’s service, but the principles are not limited to Meltwater. They are relevant to any fundamentally similar media monitoring service which supplies business users with publisher headlines, extracts, links or other monitoring material.
The High Court found that “headlines are capable of being literary works” and that some headlines were protected works in their own right. The court also applied European case law confirming that short extracts can be protected where they contain the author’s own intellectual creation.
The Court of Appeal upheld the relevant conclusions. In plain terms, the Court of Appeal did not say that every headline or every extract will always be protected. However, they were satisfied that at least some headlines and extracts are likely to be protected. Accordingly, a media monitoring service cannot avoid licensing simply by pointing to the possibility that some individual headlines or text extracts may not be protected by copyright.
The later Public Relations Consultants Association proceedings in the Supreme Court concerned a different issue: temporary technical copies made during ordinary web browsing. NLA recognises that ordinary browsing may involve temporary copies which, depending on the circumstances, may fall within that exception. That does not remove the need for licensing where a commercial media monitoring service supplies, creates, stores or makes available client-specific monitoring material outside of the confines of the legal exception for temporary copies. It also does not override contractual terms governing the use of content and data supplied by NLA to service providers.
Relevant materials:
- Court of Appeal judgment: NLA v Meltwater [2011] EWCA Civ 890
- CJEU judgment: Infopaq International A/S v Danske Dagblades Forening C-5/08
- Supreme Court case page: Public Relations Consultants Association Ltd v NLA [2013] UKSC 18
- NLA summary of legal proceedings, June 2014
Practical implications for media monitoring organisations
Media monitoring organisations and other service providers should ensure that they hold the correct NLA licence for the content source and service they operate, and that relevant clients, users and supplied material are reported in accordance with that licence.
NLA service-provider web licences for media monitoring organisations, including the Web Database Licence and eClips Web Database Licence, distinguish between permitted text extracts and summaries. Under those licences, a permitted text extract is limited to a headline and/or a direct text extract of up to 256 characters. The web licences do not permit summaries created by automatic means, other than permitted text extracts.
NLA’s MMO Licence for print and database content does not confer rights in respect of summaries.
Media monitoring organisations should not assume that a summary-only product circumvents licensing requirements. Where a service supplies verbatim publisher text, including headlines or extracts, the appropriate licence is likely to be required and the material must be used, treated and reported in accordance with the applicable licence terms. Where a summary is produced, the position will depend on the source of the content, the licence terms, and the way the summary or text is created and supplied.
Media monitoring organisations should not treat headline-only, extract-only, summary-only, no-click-through or portal-only services as outside the NLA framework without an appropriate legal and contractual basis. They should also ensure that NLA-supplied content, XML, metadata or database material is used only for purposes permitted by the relevant licence.
Practical implications for clients
Business users receiving or accessing media monitoring material, including headlines, extracts or summaries, with or without links to articles, should ensure that their organisation holds any appropriate NLA licence covering the staff who receive, access, forward, store or otherwise copy the material.
A licence may well be required where the material consists of headlines and/or verbatim extracts. Users should not assume that no licence is needed merely because the full article is accessed through a link or because there is no link at all. In these instances, clients should speak to NLA about their specific service and the use to which the content is being put.
Clients should also check whether onward internal or external sharing is covered.
Further information
Media monitoring organisations and business users who are unsure whether their service or use is covered should contact NLA media access before supplying or receiving the material.
This note is intended as general guidance. It is not a substitute for legal advice on any particular service, contract or factual scenario.