The implications of the Copyright Tribunal’s decision on PR professionals

With some irony, on Valentine’s day the copyright tribunal made its ruling in the prolonged and increasingly complicated case of the NLA versus Meltwater and the PRCA. In essence, as I understand it, the ruling in practical terms means the following: If either PR agencies' employees or in-house PR professionals (or indeed any in-house employee) email or pass on a link to a publisher's web site with a commercial purpose, then they need a licence from the NLA. The ruling on Tuesday found that, although the copyright tribunal agreed with the NLA on principle of copyright, essentially their fee structure surrounding the resulting licensing service was unreasonably high. Therefore, the tribunal decided to reduce the level of the fees that the NLA can charge licence holders for 2012, 2013 and 2014. Quite what happens after 2014 and whether the NLA is then free to charge people what they want, to be frank, no one I have spoken to seems to know. The reduction in fee level is significant. For example, the 2012 fixed rate for an NLA license for one user, in an organisation with 1-5 employees is reduced from £258 annually to £150. This is one of those stories where you feel that you never quite get to the nub of the issue, but there are a couple of good articles from Econsultancy and the Holmes Report; both come from a slightly different angle to this one and add to the debate. Whilst it’s tempting (and more popular with our readers) to state that the NLA represent all things evil, there are, as ever, two sides to this debate. Publishers spend time and therefore money producing content, so is it right that companies like Meltwater can then charge their clients a fee for categorizing this content and pay the publisher nothing? I’m not sure it is. And of course, by the nature of their business, news monitoring publishers need the news media to exist; otherwise their business, by definition, suffers. At the same time, the practicalities and enforcement of the NLA’s licensing scheme seem pretty difficult. If I’m a large agency or a corporate organisation forwarding links of our coverage, then OK, I guess I can see the justification for the license. But if I’m an individual in an organisation forwarding an article about a competitor, does that also count? Presumably it does. But then what about an article about a new market that might be relevant for the company? Does that count? You see the difficulties. And then of course it seems pretty unfair to have one rule for PR people another rule for everyone else. And then you have the issue of how on earth, beyond the paying customers of the news monitoring providers, are the NLA attempt to enforce this?

What happens next?

I’m afraid this process hasn’t reached the end game yet. Meltwater, the PRCA and the NLA are off to the Supreme Court in February 2013. The Supreme Court will hopefully make a ruling on the issue at hand; whether as a user, or a consumer, when clicking on a link you make a temporary copy of it, or it's  just a process. Once this judgement is made, for better or worse, we may reach some finality in this complex and, I imagine, increasingly expensive case. If you fancy some more background reading on this, here is a piece we ran a while back from Ben Allgrove, partner at law firm Baker & McKenzie, on Why Meltwater and the PRCA challenged the NLA. And here is a article from the NLA's David Pugh, giving their perspective.