On 5th June 2014, the PRCA won a landmark decision at the Court of Justice of the European Union (CJEU) that affirmed the right of internet users to browse online freely without the threat of infringing copyright law. The CJEU accepted all of the arguments of the PRCA and Meltwater against those arguments put forward by the Newspaper Licensing Agency (NLA), that browsing and viewing articles online does not require authorisation from the copyright holder.
The decision is binding and comes in the wake of a protracted legal action in the UK courts that began in 2010.
The judgment means that internet users are now protected by the temporary copy exception of EU copyright law when they read or browse content online.
The ECJ ruled that European law "must be interpreted as meaning that the on-screen copies and the cached copies made by an end-user in the course of viewing a website satisfy the conditions… and that they may therefore be made without the authorisation of the copyright holders."
What does the judgment mean for the PR industry?
This judgment is pivotal to our entire case against the arguments advanced by lawyers for the NLA, but it is by no means the end of the process.
To explain the situation, let’s go back to the two NLA licences that this judgment relates to, that cover the sharing of online links: the Web Developer Licence (WDL), which charges media monitoring agencies like Meltwater for sharing links with their clients; and the Web End User Licence (WEUL), which requires PR agencies and in-house teams to pay for the links that they receive from those monitoring firms.
The CJEU judgment means that the NLA cannot copyright online content, when a link is clicked on. But the judgment does not – and never attempted to - cover the sharing of digital links by email – this is still covered by copyright law. So, while there are implications for the WEUL, the WDL is unaffected by the judgment.
This ruling opens the way for media monitoring companies to create new service models with innovative digital formats that can get around the WEUL – we encourage them to do so. For instance, they may launch a web portal which features links to coverage, rather than sending an email listing the coverage.
The NLA might attempt to deal with this by increasing its fees to Meltwater and other media monitoring firms for the WDL – fees which the media monitoring companies might feel compelled to pass on to end users. But if the NLA were to attempt such a manoeuvre, we would respond in as forthright a manner as we have in the past. We have saved the industry millions in licensing fees, as the Copyright Tribunal forced the NLA to lower its proposed prices by 90%.
These issues will all be turned over at the next stage in this process – intense negotiations between the PRCA and Meltwater and the NLA. We have gained a far greater negotiating position against the NLA to force them to drive down the cost of licencing for receiving digital links.
But it is important to point out that the NLA’s suggestion that they can somehow work around this judgment is absurd. They cannot ignore the ruling of the court by increasing fees to media monitoring companies – fees that will be passed on to the end users.
If they attempt to do so, we will once again take them to the Copyright Tribunal for attempting to bill too much.
International technology and IP specialists Bird and Bird observed: “From an industry perspective, the decision will have interesting implications for the NLA's licences (which were the origin of the dispute). These currently require a payment by end users for acts which do not require a licence as a result of this decision."
However, while negotiations are ongoing, the PRCA advises its members to continue paying their fees – for the time being.