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.
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.