The Court of Appeal has decided that Marks and Spencer did not infringe copyright in “typographical arrangements of published editions” by copying and distributing press cuttings.
The Newspaper Licensing Agency (NLA) licenses companies to make copies from newspapers. A licence fee of 2.066p per copy was agreed between the NLA, the Institute of Public Relations and the Public Relations Consultants Association.
M&S internal press offices obtained cuttings relevant to M&S from a cuttings agency, copied the cuttings and distributed them to a restricted list of executives and directors who needed the information for a variety of company purposes.
Round one of this test case went the NLA’s way. Mr Justice Lightman decided last year in the High Court that each newspaper article copied had its own “typographical arrangement” copyright and M&S’ copying of those articles was not “fair dealing for the purpose of reporting current events”.
By a two to one majority last week the Court of Appeal reversed this decision. The term “typographical arrangement” refers to the typographical arrangement of a whole newspaper, not of each individual item. The individual cuttings copied by M&S were not substantial parts of the whole newspapers from which they were taken, so there was no infringement of copyright.
Last week’s decision is clearly ripe for a further appeal to the House of Lords. The only issue on which all four judges have more or less agreed so far is that M&S’ distribution of copies did not amount to “fair dealing for the purpose of reporting current events” (although one Court of Appeal judge did think it was fair and another did think it was for the purpose of reporting current events).
Companies who, like M&S, are not paying a licence fee to the NLA for internal distribution of press cuttings should bear in mind that individual stories and pictures copied by M&S will almost certainly have had separate copyright protection as literary or artistic works. Many of those copyright works will have been infringed by M&S if, as seems likely, the fair dealing defence is not available. As well as typographical arrangements the NLA also controls copyright in literary and artistic works published in newspapers (to the extent this is owned by the newspapers). A claim in respect of these copyrights would be more difficult to answer.