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Web trawlers may have to pay to slurp up German newspaper snippets

Online news 'aggregators' may be forced to cough licence fee

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The parties in Germany's ruling coalition have proposed a new protective copyright law for news publishers to ensure they are compensated by "commercial traders" that use pieces of their copyrighted content online, according to an automated translation of a document (15-page / 91KB PDF) recently published by the parties.

The snippets would be copyright-protected for one year, although individuals will be allowed to use the material for private use without having to pay royalties, it said.

In the UK last year the Court of Appeal ruled that the material on newspaper websites was protected by copyright and dismissed counter arguments made by clippings service Meltwater and the Public Relations Consultants Association (PRCA) that exceptions to copyright law applied.

Meltwater technology scans newspaper websites for words that clients ask to be notified of so that they can track the news on certain subjects. It sells its services largely to PR firms who monitor news coverage related to issues or clients' businesses.

The ruling meant that users of a clippings service must have a licence from newspaper publishers to click on links taking them to newspaper website pages to avoid infringing the publishers' copyrights.

Last month a Copyright Tribunal made an interim ruling on the licensing terms that would be applied to business customers of those clippings services. The Tribunal ruled that those 'web end users' should pay rates beginning at approximately 40 per cent cheaper than the Newspaper Licensing Agency (NLA) – which was representing newspaper publishers – had proposed.

The Tribunal rejected Meltwater's claims that if it operated a 'headline-only' service then its customers would not need a licence from the NLA. The Tribunal said that Meltwater was trying to argue a point it had previously lost in the Court of Appeal. The Court had said that headlines were copyrightable. The Tribunal said the fact a 'headline only' service may constitute less "usage" of copyrighted content than other services was a "less important factor" in determining the rate that would be due.

"End users of a headline only service should enter into the WEUL (NLA's web end user licence) just like end users of the normal Meltwater News service of headlines plus extracts and should be subject to the same tariff rates. The reason for this is that a point which we have decided in Meltwater’s favour on the issue of the appropriate rate for the normal Meltwater News service (inc. search fee), operates against setting a different rate for a headlines only service," the Tribunal's ruling said.

"The rate is a rate to give the copyright owners a fair share of the revenue generated by this service, which is indeed based on their copyright work but does not scale directly with the volume of copyright 'usage'," the Tribunal said.

"Our decision in relation to Meltwater’s headline only service is that we reject the argument that requiring end user licensing under the WEUL, and at the same rates as the WEUL, is unreasonable. If Meltwater want to offer a headline only service to their end users they are free to do so but the service must be licensed in the same way as the headline plus text extract service," it said.

The European Court of Justice ruled in 2009 that "isolated sentences" or even parts of sentences were copyright-protectable if they conveyed "to the reader the originality of a publication such as a newspaper article, by communicating to that reader an element which is, in itself, the expression of the intellectual creation of the author of that article".

In May last year, the Belgian Court of Appeals ruled that Google had infringed the copyright in newspaper reports when it linked to the papers' websites or copied sections of stories on its Google News service. The ruling backed an earlier judgment by the Court of First Instance in Belgium.

Copiepresse, an agency acting for newspapers, sued Google on behalf of the papers in 2006. The newspapers argued that they were losing online subscriptions and advertising revenue because Google was posting free snippets of the stories and links to the full article on Google News.

However, as well as stopping the Google News snippets the internet giant also stopped displaying links to the newspaper websites via its search engine results. It returned the links to search engine results only after Copiepresse gave it permission to "re-include" the sites in the indexes. Google had said it would be happy to include the Belgian newspaper websites in its search results if they would waive the potential penalties a court could issue.

The newspapers had complained that Google had been "unnecessarily aggressive" in removing them from the search engine.

Copyright © 2012, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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