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A 2010 High Court ruling in England expanded the scope of "copyright infringement" to include viewing a website or forwarding a link to the website. The case is Newspaper Licensing Agency v. Meltwater. Newspapers bringing the suit included the Mirror (MGN Limited), the Daily Mail (Associated Newspapers), the Daily Express, the Guardian, the Telegraph, and the Independent. Meltwater was a service that would spider news websites and send its own users emails containing article titles, excerpts of the first eleven words of the articles, and links to the articles on the original publisher's website, based on search terms provided by the users.
Justice Proudman of the Chancery Division of the High Court of Justice found "prima facie" copyright infringement in these cases:
101. When an End User receives an email containing Meltwater News, a copy is made on the End User's computer and remains there until deleted. Further, when the End User views Meltwater News via Meltwater's website on screen, a copy is made on that computer.
102. Therefore the End User makes copies of the headline and the text extract in those two situations and there is prima facie infringement.
103. When an End User clicks on a Link a copy of the article on the Publisher's website which appears on the website accessible via that Link is made on the End User's computer. It was (I believe) said by PRCA that owing to the factors considered under the previous heading there was an implied licence to copy articles directly from the Publishers' website. The argument on this head was, as I have said, a broad brush argument, and not presented as clearly as I would have liked. However it seems to me that in principle copying by an End User without a licence through a direct Link is more likely than not to infringe copyright.
104. An End User who uses the share function to forward a headline Link (and, a fortiori, an End User who simply forwards an email) to a client will make further copies and thus further infringe. Such forwarding will also be issuing a copy to the public under s. 18 CDPA.
On the subject of headlines, Proudman herself heavily quotes prior findings that headlines cannot be copyrighted before stating at point #67 that she is bound by the European Court of Justice ruling in Infopaq v. DDF which held that excerpts of any length "share the originality of the whole work". She furthermore finds at points #70-72 that "headlines are capable of being literary works" because they "involve considerable skill in devising", therefore "some of the headlines are independent literary works" and have copyright protection regardless of Infopaq.
On the subject of viewing a website being copyright infringement, Proudman finds that the presentation of a Terms of Service page makes it automatically enforceable as "an implied license to copy articles directly from the Publisher's website". No justification is given for this. The conclusion is that viewing a website is by default illegal in England and Wales unless you have the permission of the copyright holder, and the copyright holder's presentation of a web page does not constitute permission.
On the subject of forwarding a link being infringement, nothing more is said. Proudman's finding on this subject seems to be tied to the presence of the headline alongside the link, which she finds to be infringing under Infopaq.
Because Meltwater was meant for business customers to find mentions of their businesses in the news, Proudman found at point #129 that "Meltwater News is not intended for public consumption" and therefore does not meet the exemption for reporting current events.
At point #20, Morritt finds that headlines are copyrightable in the general case, citing in their support several rulings:
- Dicks v. Yates (1881) - A case involving two books titled "Splendid Misery" which denied the title copyright protection.
- Lamb v. Evans (1893)
- Day & Hunter v Fox (1940) -- A Canadian ruling which found that "As a rule a [song or movie] title does not involve literary composition and is not sufficiently substantial to justify a claim to [copyright] protection.] That statement does not mean that in particular cases a title may not be so extensive a scale and of so important a character as to be a proper subject of protection against being copied." As an example, they cite Dicks v. Yates to suggest a title that is so long as to be a full page of text by itself.
- Ladbroke v. Hill (1964) -- A case which involved the copying of the organization and appearance of data.
- Exxon v, Exxon Insurance (1982) -- A trademark case which apparently found a copyright in the name of a business. I was not able to find a fuller description of a ruling than what is on Wikipedia.
- Fairfax v. Reed (2010) -- An Australian ruling widely reported as finding that headlines cannot be copyrighted, but from which Morritt cites Paragraph 46 to declare the opposite.
Morritt uses these precedents to uphold Proudman's finding that headlines generally are "independent literary works".
On the subject of extracts, Morritt sets aside Infopaq and find at points #28-29 that Meltwater's mechanism is likely to include multiple extracts from the same news article and that the "probability of that occurring on a regular basis and to a significant extent" means that sufficiently substantial portions of the articles are copied to be an infringement of copyright.
On the subjection of viewing a web page, at point #47 Morritt finds that the publishers' Web Database License (which Meltwater never agreed to) is a binding contract on end users which "does not authorise the end-user to make any of the copies made on his computer" by viewing the news website through a URL.
Morritt does not speak on the subject of forwarding a hyperlink.
Via Hacker News.
