If you read this headline, perhaps you should pay me a licensing fee
By Leo Valiquette
As a journalist and newspaper and magazine editor (and I still serve in these capacities from time to time), I’ve written my fair share of headlines. Thousands of them, in fact. But I would never have thought to label such creations, no matter how long I spent trying to come up with something catchy and engaging that would break nicely over two decks, as a “separate literary work.”
But that is exactly what has occurred in Britain in the latest ruling to come out of a legal battle between the Newspaper Licensing Agency (NLA), which is owned by the U.K.’s eight largest newspaper groups, and Meltwater News.
Meltwater is a media monitoring, news aggregator and clipping service that we subscribe to at inmedia. It is one of many such services available that constantly scour the web for mentions of our clients or of subject matter in which they have an interest. While such services are not 100 per cent effective, they are much more comprehensive and feature-rich than free monitoring services such as Google Alerts.
As a Meltwater client, we of course pay a subscription fee for regular reports on media coverage of our clients and their respective industries. It is this fee-for-service model that has raised the hackles of the NLA and led to the current dispute. A U.K. court has agreed with the NLA’s assertion that the act of copying an article’s headline and a short extraction of the text, and submitting this in the form of a report to a Meltwater client is a form of copying that infringes copyright. The most damning part of this judgment is that an article’s headline has been deemed a “separate literary work” on the basis of the time and creative effort that often goes into crafting it.
The NLA therefore expects Meltwater and its kind to pay licensing fees to copy headlines and submit them as part of a report to its clients. This is not in dispute. Most services already pay licensing fees to the NLA. The issue is that the NLA also wants the clients of Meltwater and similar services to pay additional licensing fees for receiving and viewing a media monitoring report.
It should be noted that the NLA’s claims do not apply to free services such as Google Alerts, but only to the Meltwaters of the world that charge money for their services.
In an article published by the New Statesmen, David Pugh, managing director of the NLA, welcomed the ruling.
“We hope this ruling will help ensure a fair share of web monitoring revenue for publishers and a fair media monitoring market,” he said. “Creating news content for the web is a substantial investment for publishers – it is therefore only right that they take a share when others are profiting from it.”
For Meltwater CEO Jorn Lyseggen, however, this sets a dangerous precedent that undermines the basic principles of the operation and use of the Internet. In theory, it means that users of the Internet must obtain a license from the NLA to view copyrighted material, even if that copyrighted material can be viewed freely on a newspaper’s website without having to pay a subscription. The other irritant is the amount of the licensing fee that the NLA wants to charge to end users, relative to the small amount of material included in a Meltwater report.
“We will appeal this verdict, we think this verdict is a misinterpretation of copyright law,” Lyseggen told the New Statesman. “If this ruling stands it will be a significant step back for the U.K. Internet ecosystem. … If the court upholds this decision then we think the courts need to take a closer look at copyright law and see if it needs to be more up-to-date for today’s world.”
Who is right and who is wrong here?
This isn’t the first incident of “Big Newspaper vs. The News Aggregator.” Earlier this year, Rupert Murdoch’s News International blocked web aggregation service NewsNow from linking to stories on Times Online on the grounds that such services make money from journalism without contributing anything in return.
However, as the New Statesman’s Jason Stampers observed in his story on the subject, “newspapers don’t have to pay anything to brand owners when they write about them, of course. Which means Nike may have to pay to see where its name is used in newspapers, while newspapers can use Nike’s brand for free to help drive readers, web traffic and hence advertising revenues.”
Take it from the guy who has written his share of headlines and edited other journalists’ work to achieve maximum reader eyeball traction – the creative process of not only writing an enticing headline but also crafting the top paragraphs of a story to suck the reader in, is an unapologetically exploitative process. Newspapers try to profit from what could be someone else’s “copyrighted” material all the time, without paying any licensing fee or even obtaining permission. If there is a big name involved in a particular story, we are going to take advantage of that in any way we can if we think it will increase the story’s appeal.
And let’s look at this through the PR lens, since PR shops are the common end-users of Meltwater’s service faced with the prospect of paying these new licensing fees. I challenge anyone who would claim that there is any less creative effort involved to develop a strong headline and lead paragraph for a news release than for a news article. Does that mean that a designation of “separate literary work” and a licensing fee should also apply here?
Let’s not hold to any illusion that Meltwater is anything but a for-profit business trying to achieve a healthy margin with a fee structure of its own. But what is the NLA’s true motivation here at a time when traditional daily media continues to struggle to remain relevant in the age of social media and citizen journalism? And what of the overworked journalists who create all this content in this first place? Somehow I doubt that any additional licensing revenue charged by their corporate overlords will find its way to their pockets.
An online presence opens up a far larger advertising and reader base for a newspaper than was ever possible through print alone, without the costly overhead of newsprint and ink. No matter how much the world has changed, one fundamental thing remains the same — newspapers still need strong circulation numbers and click-through rates with which to impress potential advertisers.
So one would think that it behooves the industry to make it as easy as possible to drive more eyeballs to a newspaper’s website. And yet, newspapers by the score have put up paywalls around their content that require readers to pay a subscription for access in an effort boost flagging revenues. And if the NLA has its way, it will set a precedent where readers can be charged to be linked to content they may not otherwise been aware of, even if that content is available for free on a newspaper’s website.
The dispute between the NLA and Meltwater is the latest example of how newspapers are desperate to find new ways to monetize online content. The question, however, is whether or not they will ultimately end up stabbing themselves in the foot.
