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    At last – defeat for the nla’s licence arguments

    June 5, 2014 4:44 pm

    As of this week, Cutbot can offer a comprehensive global online media monitoring service that should incur no NLA fee for our clients*. Here’s why, and further down, here’s how it works and how it differs from our current service.

    The stalwart resistance of the PRCA to the NLA’s licence scheme for media monitoring finally paid off today, after nearly five years of hard work . The PRCA’s April 2013 victory in the UK Supreme Court has now been upheld in full by the European courts.

    The PRCA’s blogpost is here, the court’s (full and pretty readable) ruling is here, and the PR Week coverage is here.

    PRCA Director Francis Ingham is pictured left, incidentally, holding the ruling and looking understandably delighted (click to enlarge).

    Not all the aspects of the original incomprehensible High Court and Court of Appeal rulings were addressed by the Supreme Court.

    Notably, headlines for NLA member content definitely still cannot be displayed in email briefings to clients unless those clients have a licence from the NLA, and even though we never republish the body of articles, we still need a licence to search them. The impact of this on search engines and other innovative businesses has never been established.

    However, the separate European court ruling in the Svensson case also protected the use of URLs – unbelievably, efforts had been made to restrict the use of links to public content, but this was defeated in February of this year.

    Anyway, if you need online media monitoring services, we can as of today offer a version of Cutbot to organisations of all sizes which should not attract NLA fees*. Here’s how this new service works – it’s not quite as good as the full service, which we will will still offer to clients who continue to pay NLA fees, but the difference is likely to be minimal for many clients.

    1. We continue to scan the full range of global media for you, including content from NLA members.
    2. You log in to your client portal on the Cutbot site. As the NLA’s managing director David Pugh says, “This [ruling] will only have an impact if new services are developed in future where the agencies create a portal that their clients access to view the content…“. The future is already here. On the portal we can now provide, you can view all links with full headlines and publisher attribution (given the courts’ view that web pages cannot infringe in the way emails may). 
    3. In this portal, as with our existing service, you can delete matching links you do not wish to email out, reorder stories to put the most important at the top, add a general introduction or commentary to any link as required, as well as edit your search terms, recipient list and so on.
    4. Links which are to content from NLA members, though, are highlighted. This means you will know, if you send email briefings, that that headline will not be displayed in your briefing.
    5. Where you then use our system to send out email briefings, for each such link to content from NLA members there is also an editable field in your portal where you can, if you wish, enter your own non-infringing summary of that article: for example: “Favourable review of our new product in the Guardian’s tech section“. If you do not edit it, the default text will be of the form “Guardian article found 5th June 2014”.
    6. In such email briefings, sent either to the client (if you’re an agency) or to senior colleagues (if you’re in-house), links to non-NLA content will be displayed with their original headline, but links to NLA member content will not show the headline – they will instead show either the default text or any manual summary you have entered.

    So, if you don’t have an online media monitoring service because the NLA fees have put you off, or if you have such a service but would prefer to switch to our new service, please get in touch. Free trials are available from tomorrow. Drop us a line here to find out more.

    Oh, and credit should also go to our competitors Meltwater, who have helped with this legal case, and were parties to it at earlier stages. The rest of the industry just seemed to accept that these fees were inevitable, rather than standing up for both their clients and the innocent non-infringing right to view public content.

    So we will offer this service for free, right now, to clients of other media monitoring firms (apart from Meltwater) where such clients are still tied into a long-term contract of up to a year, and where they agree to sign up for our service for the same period after that contract ends. So, for example, if you have six months to go with another firm, you can sign up to our new service now for a year and the first six months will be absolutely free. Where that service incurs an NLA fee, you should be able to cease paying*.

    One caveat to that offer, however, is that the second part of Mr Pugh’s sentence quoted above reads as follows: “…if that means the end user does not need to pay a licence fee then we would seek to increase the fees paid by Meltwater and other agencies.” We believe that this would in effect be an attempt by the NLA to work around the intention of these very clear rulings from the highest courts in the European Union. Furthermore, the fees that media monitoring firms currently pay were fixed this year by the Copyright Tribunal. Nevertheless, there remains a possibility that the NLA will indeed seek to return either to the Tribunal or to the courts, and to attempt to continue to extract the same client fees from us as they currently extract from our clients: if they were to do so, and if they were for some reason successful, we would have to withdraw this service.

    * We are not a massive company able to spend large sums on legal advice at short notice. Although we are confident in our reading of the impact of this ruling on the NLA’s licence fee regime, and in our understanding of what is and what is not permissible without a licence, we cannot offer a guarantee that the courts will agree with us, especially given the poor track record of the High Court and Court of Appeal earlier in this process. Further advice may become available from legal experts as this ruling sinks in.

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