PR v newspapers: European court to rule on test case which has implications for the future of the Internet

A European Court will tomorrow issue a landmark judgment that could have major implications for the public’s future use of the Internet as it decides a bitter five-year dispute between the press and the public relations industry.

The Court of Justice of the European Union in Luxembourg is due to rule on whether stories published on newspaper websites should be subject to copyright law. The PR sector, represented by industry body the Public Relations Consultants Association (PRCA), claims that if it loses the case then any member of the public reading an online news story could be liable for infringement of copyright.

But the press, led by the Newspaper Licensing Agency (NLA), argues that it is only seeking to licence those who are making commercial use of the newspaper content, such as professional media monitoring agencies. The NLA believes that if the court sides with the PRs then an “online pirates’ charter” will have been created, with serious implications for creative industries and their online output. It has been suggested that more newspaper sites will be driven behind paywalls to protect the monetary value of their content.

The ruling comes in the wake of the EU court’s recent “right to be forgotten” ruling which allowed individuals to demand that Google removes links to stories that are deemed “inadequate, irrelevant or no longer relevant”.

At the heart of the case is what constitutes “making a copy” of a press article. The PRCA, which is fighting the case alongside an international media monitoring company Meltwater Group, believes that the ruling could make the act of clicking on a story and creating a copy of the article in the cache of a computer or mobile an infringement of copyright.

The five-year battle began when the NLA introduced a licensing scheme in 2009 to charge companies that were making commercial use of content published on newspaper sites. The licences cost £5,000-£10,000 a year for the companies that commercially “scrape” newspaper sites for stories, and around £480-a-year for clients who take the service. The PR sector is concerned that such client licences would make their work unviable.

The NLA – which represents all the big newspaper publishing groups, including the owners of The Independent – believes that such charges, broadly similar to those demanded by the Performing Rights Society for commercial use of music, properly reward content creators and help sustain British journalism. The press industry body argues that there is no suggestion that individual web users who use newspaper sites for non-commercial use should be subject to licensing.

In a blog posting, Toby Headdon, senior associate at Berwin Leighton Paisner, which is representing the NLA, said the case could represent “the thin end of the wedge” for rights-holders of online content. “For end-users who use a web browser to view streamed content (including pirated content) or to access content which is stored in the cloud, the Internet will be a copyright-free zone.”

After the NLA drew up its licensing scheme in 2009, Meltwater refused to accept that there was a legal case that it required it to have a licence to operate. The matter went to a hearing at the High Court, which in 2010 ruled that online newspapers were covered by copyright regulation. The following year the Court of Appeal upheld that decision and declared that businesses which subscribed to a paid-for media monitoring service also required a licence for receiving the copyrighted material.

Last year Meltwater, supported by the PRCA, took the case on appeal to the Supreme Court, arguing that the act of accessing a web page was only temporary and should be exempted from copyright law. The Supreme Court favoured the appeal.

The European Court is due to make a final decision on whether an alerts service, containing one or more web links, should be subject to an exemption which the press body claims was only designed to protect not-for-profit use of its material.

Francis Ingham, director general of the PRCA, said: We very much hope that the CJEU’s decision will be in our favour, in light of previous sensible CJEU decisions and the compelling reasoning of the UK Supreme Court.”