Content Wars: Paywalls, Payment, Pay-As-You-Go Or Pay At All?

The latest review of the UK's intellectual property laws announced by David Cameron in November 2010 proposes to "make them fit for the internet age". The review intends to look at a number of different areas, including, the barriers to new internet-based business models (such as, the cost of obtaining permissions from existing rights-holders). The review is scheduled to be completed by April 2011 and may shape the way the digital media industry in the UK develops with respect to the distribution of data, although previous reviews of the UK's intellectual property laws have had a restricted impact on the digital media industry to date.

A recent case highlights the tension between those who publish articles online and those who provide digital media monitoring services, which has put the focus back on the issue of content licensing and payment for digital content.

Meltwater case – A "Battle Royal"

In the case of The Newspaper Licensing Agency Ltd ("NLA") and others v Meltwater Holding BV and others ("Meltwater") [2010] EWHC 3099 (Ch), 26 November 2010, the NLA (an organisation which represents newspapers and collects royalties from newspaper clippings services) and 6 newspaper companies (the "Publishers") sued Meltwater (a digital media monitoring service which sends headlines, article excerpts and hyperlinks to articles in the form of an email to clients (the "Service")) for copyright infringement. This was on the basis that although Meltwater obtained a licence from the NLA to use the copyrighted information the end users of the Service did not have any licence to receive or use such information from the NLA. So the central question to be decided by the court was whether or not the end users of the Service required a licence themselves from the NLA to receive the copyrighted information contained in the Service.

Of particular importance to the NLA and Publishers was that the Service was a commercial operation as opposed to a free digital media monitoring service (such as Google News) some of which have separate arrangements with publishers for the dissemination of copyrighted information contained in news stories.

The NLA claimed that, in the absence of consent from it, the end users of the Service infringe copyright in the Publishers' headlines, and/or the Publishers' articles and/or the Publishers' databases either by:

receiving and reading the Service and in so doing the end user makes a copy of it, and the copyright material contained...