Meltwater: Never mind Infopaq, Court of Appeal preserves old British 'original literary work' test

"Clear, careful and
comprehensive": Mrs
Justice Proudman upheld
on appeal

Today's ruling of the Court of Appeal for England and Wales in The Newspaper Licensing Agency Ltd & Others v Meltwater Holding BV & Others [2011] EWCA Civ 890 has upheld the ruling of Mrs Justice Proudman (noted on this blog by Hugo here) that end-users of media monitoring service Meltwater required end-user licences to access and use search results consisting of the headline of each article which mentions the search term (which hyperlinks to the article), the opening words of that article and an 11-word extract showing the context in which the search term appears.

A longer description of the factual background appears on the IPKat this morning, here. This post focuses on what the Court of Appeal said about the Court of Justice of the European Union ruling in Case C-5/08 Infopaq, which has caused a good deal of consternation in copyright circles of late. The question before the Court of Appeal at this juncture was whether a headline could be protected by copyright as an original literary work. Said the Court:

"19. The starting point [is] s.1(1)(a) CDPA. To satisfy that subsection the headline must be "a work" and both "original" and "literary". A headline is plainly literary as it consists of words. The word "original" does not connote novelty but that it originated with the author. This test was clearly established in the domestic law of England by the decision of Peterson J in University of London Press Ltd v University Tutorial Press Ltd [1916] 2 Ch 601 approved by the House of Lords in Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273. 

20. The decision of the European Court of Justice in C-5/08 Infopaq International A/S v Danske Dagblades Forening [2009] ECDR 16 related to questions of infringement but in paragraphs 33 to 37 the Court considered the conditions necessary to attract copyright protection. The Court said: 

"33 Article 2(a) of Directive 2001/29 [the Information Society Directive] provides that authors have the exclusive right to authorise or prohibit reproduction, in whole or in part, of their works. It follows that protection of the author's right to authorise or prohibit reproduction is intended to cover 'work'. 

34 It is, moreover, apparent from the general scheme of the Berne Convention, in particular Article 2(5) and (8), that the protection of certain subject-matters as artistic or literary works presupposes that they are intellectual creations. 

35 Similarly, under Articles 1(3) of Directive 91/250, 3(1) of Directive 96/9 and 6 of Directive 2006/116, works such as computer programs, databases or photographs are protected by copyright only if they are original in the sense that they are their author's own intellectual creation. 

36 In establishing a harmonised legal framework for copyright, Directive 2001/29 is based on the same principle, as evidenced by recitals 4, 9 to 11 and 20 in the preamble thereto. 

37 In those circumstances, copyright within the meaning of Article 2(a) of Directive 2001/29 is liable to apply only in relation to a subject-matter which is original in the sense that it is its author's own intellectual creation."

Although the Court refers to an 'intellectual creation' it does so in the context of paragraph 35 which clearly relates such creation to the question of origin not novelty or merit. Accordingly, I do not understand the decision of the European Court of Justice in Infopaq to have qualified the long standing test established by the authorities referred to in paragraph 19 above".

Good news for those who have been uncomfortable with Infopaq. Bad news for those who don't like the idea of headlines being potentially protectable as copyright works.