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We object to the Newspaper Licensing Agency's terms

July 16th, 2012

You may be familiar with a dispute between one of our competitors and the NLA, so far comprising two rounds of court action and a visit to the Copyright Tribunal. Essentially, in late 2009 (about six months after we first set Cutbot up as a company), the NLA claimed the right to charge both us and our customers a licence fee for the links we send to publishers’ content.

We were astonished when that claim was first made. Then, when the NLA wrote to us in 2009 asking us to take out a licence, we asked them to tell us which specific section of the relevant legislation they were relying upon: no answer. When the NLA took Meltwater to court we were of course confident that Meltwater would win, and our astonishment therefore reached new heights when the High Court and the Court of Appeal ruled for the NLA.

The basis for those rulings is far-reaching, and has been mysteriously under-reported by the newspapers. First, the courts decided that the HTML and so on provided to you by a newspaper website (or indeed any website with copyright information on it) is a potentially infringing copy, even assuming you never republish it or do anything with it other than view the paper’s own website.

Consider what that means.

You ask for a page. Their server freely provides the data. And yet you need a licence before you even display it. The Supreme Court will rule on this aspect next year, and we are of course again optimistic that common sense will prevail. Second, the Courts appear to have decided that some headlines are copyright, and so a licence could be required to send an email containing any headlines and links to the original stories on the publishers’ websites.

While the NLA have so far restricted their targets to people they can go after without arousing much anger, the fact is that the position they took, and which the courts supported, means that simply visiting a public news website can infringe copyright, and so too could even retweeting a publisher’s headline-and-link tweet. There’s no way of knowing if you require a licence to read any copyright material. I could even require one from you for this blogpost.

Bizarre.

Anyway, the upshot of this is that, for now, we expect to have to sign up for a licence. However, the terms of the new licences agreed between the NLA, Meltwater and the PRCA in May (see Copyright Tribunal rulings from February and May) are unacceptable to us. For one thing, they would put us out of business, because they’re seriously skewed against small companies. For another, their terms mean a boutique hedge fund making a massive profit would pay less than a medium-sized charity, even assuming the same number of staff at each receive email briefings. For yet another – well, we have a fair few objections, and you can read the letter yourself if you like. Be warned, it’s quite long. As it says at the end of our letter, “Clearly a reopened Copyright Tribunal hearing risks significant uncertainty for us as well as for the NLA, so we would urge you to give this matter your prompt consideration.”

So yes, we object to the terms, and the debate over these licences is not over. Most of all, though, we object to the principle. In order to extract these absurd and unfair fees, the NLA have paid first-class lawyers to break the internet, and most people haven’t noticed yet. We don’t “copy and exploit journalists’ work” – we send people to publishers’ websites, sites which hopefully make money for them. And the everyday acts of browsing the web and sharing links shouldn’t be criminalised in order to prop up the NLA’s bottom line. Sooner or later that principle will be restored.

Posted in: Legal & copyright

15 Responses to “We object to the Newspaper Licensing Agency's terms”

  1. Interesting. These would be the same newspapers that once quoted my blog, without warning. This caused a traffic spike, and a hit to my hosting bill. I look forward to my forthcoming claim against The Times.

  2. how about you claim your email is copyright because it is in the contact us page or similar with copyright notice and claim that the infringed because they republished it when they entered it in mail client when they contacted you.

    • It may be tempting to sink to their level, but..

  3. In order to prosecute their case, the government’s agents had to view your site. Therefore, under the government’s own theory, the government agents are copyright violators. Further, the judge presumable viewed your site, so he is also a copyright violator, at least that is according to his own ruling. Will he be issuing himself a fine or other punishment?

    • Ah no, we weren’t a party to the court cases, but in principle we could refuse to licence anyone to view our content.

      I’d be surprised if anyone in those courtrooms hadn’t looked at newspaper websites for work, though, and I doubt many of them were licensed to do so.

  4. Dear James

    NLA licences ensure content creators get a fair share of the money paid for web aggregators charge for providing monitoring services. These licences were drafted following extensive market consultation in 2008 and 2009, and accepted by most of the media monitoring community as providing legal certainty on commercial use of 1,000 websites for a reasonable fee, significantly lower than equivalent print fees.

    Meltwater challenged the licences, but after extensive court review they were upheld in law, and the commercial terms were (largely) upheld in the Copyright Tribunal case. At the end of that case NLA, Meltwater and PRCA agreed the final licence terms. I am mystified that you feel these cases were under reported, as most national newspapers carried reports, as did the specialist press. A quick web search would give you hundreds of hits.

    For the record we did tell you on November 6th 2009 that our case was based on the 1988 Copyright Designs and Patents Act, which gives creators the right to object to unlicensed exploitation of their work. We work with professional media monitoring companies and users to create a clear framework for businesses wishing to use newspaper website content.

    We will respond to your expansive letter separately.

    regards

    Andrew

    andrew hughes | commercial director | newspaper licensing agency | 16-18 new bridge st, london ec4v 6ag | registered in england and wales company number 3003569

    direct line +44 (0) 207 332 9359 | mobile + 44 (0) 7971 548 322 | switchboard 0207 332 9350 | ahughes@nla.co.uk|www.nla.co.uk|

    • Andrew,

      Interesting points from both sides. I understand the newspapers are looking for additional ways to generate revenue, after all it was heavily detailed in The Sunday Times the decline of The Guardian on the wekend. In addition, a business which can profit from content being created should in theory be charged something for that. On the other hand, if newspapers provide access to content for free, why are media monitoring companies having to pay for free content?

      I understand the argument from both sides but I this law is ridiculous and it’s simply a farce.

      Firstly, Andrew you stated the purpose of the NLA is to ensure the content creators get a fair share of the money. Writers are paid for for creating content, this content is put online by the publication who will populate the page with adverts in order to recoup and profit from this content. Surely therefore, newspapers want as many people to access this content as possible to ensure creators (and by creators you mean the newspapers?) maximise profit per article? Or does this model not work and so it’s more profitable to charge media monitoring companies?

      Secondly, if the later is the case why prohibit small and emerging media monitoring companies from growing with your licensing agreements? Which as it sounds to me from Cutbot’s post that is exactly what your doing.

      Thirdly, if by ‘content creators’ you mean journalists (and as a freelance journalist myself) I have NEVER received a fair share when my work is blatantly ripped off by other journalists working for other publications. In fact, I’ve received nothing not even a hello from yourselves. I personally don’t understand what you therefore do, except to take Meltwater to court.

      Lastly, I now access articles on Facebook, which display a clickable title. Are the newspapers now breaking their own law? Or is Facebook breaking it for displaying these article titles? Or me for clicking on it? Facebook is one huge aggregator of content, it’s just users gathering it, not machines – is there a difference?

      I wonder if you’d dare charge Google for indexing sites and displaying search results?? I also have Google Alerts set up, which I imagine isn’t that far off what these guys do. How much do you charge Google?

      Personally I think this is the most ridiculous law I’ve ever heard.

      • Journalist

        NLA is licensing paid for services – people like Cutbot and Meltwater who copy everything on a website into a database and extract data for paying clients – typically PR officers, not private individuals. These media monitoring businesses charge a total of around £20m pa for these services in UK, and the NLA feels a fair share of that should go to the publishers who provide the content.

        The traffic generated by paid for services is trivial;- Meltwater said in court that they added just 96,000 click throughs a year to the many millions of page views newspaper sites get each month. And as you’ll know, the advertising value of milions of page views (let alone 96,000) is very limited, which is one reason why so many newspapers are cutting back on employing freelance and staff journalists.

        We encourage new media monitoring businesses, and most accept that copyright fees are a normal expense for a publishing business. They create content themselves, and expect it to be respected. New business is good, but if they should get get free content from NLA should Cutbot also get free computers, free rent, and free staff? Content is the property of the creator to licence as they see fit, and that right should be respected.

        Nearly all the money NLA charges goes back to the newspapers and helps them protect their current busines and invest in their futures. The web licence income will probably be quite small – around £1 million a year. But we do send hard pressed UK newspapers around £20m a year from print copying. That’s equivalent to 800 staff at £25,000 pa.

        Finally, the NLA – Meltwater case established that a customer of a paid for service (Meltwater) needs a licence to cover the receipt and use of copyright material. It did not address and so did not establish that clinking on links breaches copyright. Thats a scare story put round by businesses that wanted to avoid paying for content. NLA wants professional, paid for services to pay a fair share. Please keep clicking on Facebook links.

        Finally we have no plans to charge free to user services, like Google and the hundreds of other consumer services.

        I hope you agree on reflection that the law makes sense, and that NLA is here to support content creators, and also to provide a simple way for professional organisations to respect copyright.

        Andrew

        • Thanks, Andrew, but by “free content” you mean content provided freely online, content we do not republish. It’s misleading to suggest that many lay people or copyright experts would regard sending a link to a story on a publisher’s website as equivalent to republication of the content.

          Your £20m figure is also a red herring in this case. You’ve asked us for a £7,500 annual fee for a licence and an audit, which is roughly a third of our total ex-VAT revenue. It looks like the free computers would be heading your way, not ours. Anyway, fascinating as this discussion is, we’re still looking forward to an proper expansive reply to our letter at some point.

  5. I take it the google defence won’t do?
    By which I mean that you argue, not untruthfull, that you are not stealing content but rather promoting it.
    You are increasing the readership and therefore the potential revenues of the sources.
    Surely you could even argue that they should pay you…,,

  6. I’m not sure why they are seeking fees from you – as you say, your site doesn’t republish anything.

    My own case is different in that I have a press page on my website. This is where I showcase articles in which my online shop has been mentioned. Basically, this is free publicity for the publications featured – plus, I have actually had to pay my web designers to create the page and upload the articles. On top of this, I have posted masses of free content online, but unlike the magazines and newspapers subscribing to this ‘official’ agency, I am unable to claim fees when my articles are reproduced by others on their websites or blogs.

    My company is tiny – just me, a computer and a negligible turnover, but this organisation is looking to charge me an annual fee that will send my company into administration.

  7. Interesting read, this, because these leeches are chasing us – a two person PR agency – because we display some of the press we’ve got our clients in the past on our Facebook page.
    For some reason, it seems they’re not chasing celebrities with 100k followers more than us who share stories about themselves, but we’re fair game for the articles we’ve put out.
    Bearing in mind a huge amount of this content is written by me, and illustrated with photos taken by me, it’s an insult to suggest we have to hand over thousands of pounds to be able to show people ‘this is what we did’. It’s a long standing deal that we provide the newspapers with free content, and the payback is the publicity we get for our clients. If we can’t share or use that content, then the deal suddenly becomes very lopsided and the newspapers are taking my free content, then making me pay them for the free content I wrote.
    I see freelance journalists – who HAVE been paid for their writing – sharing their articles all the time. Are they being chased? It seems not.
    Ultimately, I’m all for saving the newspapers – we used to be journalists ourselves and the demise of the industry is not something I ever want to see. But the idea that putting small PR agencies (who provide an awful lot of the content for these criminally understaffed newspapers) out of business will help anyone is laughable.
    While the law might be there for a reason, I still fail to see how a picture the following day saying ‘here is our client in xxx newspaper’ is doing any damage to anyone’s business. It’s not taking sales away from businesses, it’s not something they’d resell to anyone else (not least because if someone else wants to talk to our client, they can come to us and arrange it for free) and the newspaper is old, out of date and unavailable for sale any more.
    Ultimately, somebody started a company because they saw a chance to grab a bit of cash out of an ailing industry, while pretending to be helpful all round.
    The PR/journalist relationship has always been a strained but very successful one. We don’t need the NLA butting their heads in the middle of it all.

    • Thanks Matt, interesting stuff, and pretty familiar in a variety of ways. We are optimistic that the forthcoming European Court verdict on Meltwater vs PRCA will be positive, not least because it follows pretty closely on this excellent ruling last week.

  8. Andrew Hughes stated:
    “I hope you agree on reflection that the law makes sense, and that NLA is here to support content creators, and also to provide a simple way for professional organisations to respect copyright.”

    I agree. But the NLA was not designed to penalise the content providers, just the content consumers.

    Today I have had our 5th heated telephone conversation.

    If the law is there to support content creators, why are we, the content provider, being hassled by the NLA when EVERY SINGLE cutting on our website was written by us, commissioned by our client and ‘offered’ for publication.

    1. We own the copy.
    2. The publications printed our copy – and in most cases emailed or posted a copy of the resultant printed article for our use.

    Therefore, surely, there is no requirement to pay for a licence.

    But apparently, to quote the jobs-worth I have just spoken to, “it doesn’t matter, you have to have a licence”. BUT WE OWN THE COPYRIGHT!

  9. In order to prosecute their case, the government’s agents had to view your site. Therefore, under the government’s own theory, the government agents are copyright violators. Further, the judge presumable viewed your site, so he is also a copyright violator, at least that is according to his own ruling. Will he be issuing himself a fine or other punishment?

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