Copyright wars

It sounds self-explanatory, just like in school, don’t copy the kid next to you or you’re going to get in trouble, that’s Copyright in a nutshell.

Copyright in journalism and media monitoring is slightly more complicated. In the United Kingdom and Australia, the governing bodies overseeing the implementation of copyright for Journalism are run as not-for-profits.

In the United Kingdom NLA Media Access (NLA) is a publisher-owned rights licencing and publisher service business whose core aim is to support journalism. The NLA licence revenue is distributed to publishers in the form of royalty payments helping to fund future journalism. They’re also committed to finding the journalists of the future through their Journalism Diversity Fund, providing grants to aspiring journalists from diverse cultural backgrounds.

The NLA is a limited company owned in equal shares by the seven national newspaper publishing groups (Associated, Financial Times, Guardian, ESI Media, Reach, News UK and Telegraph.) This means the NLA represents a repertoire of around 300 publishers.

The Copyright Agency (CA) is the licensing body in Australia and is a not-for-profit collecting society. They collect licence fees for the reuse of text and images then distribute these as royalty payments to their creator members (publishers and authors). They have around 38,000 members including similar copyright management organisations in other countries (including the NLA) ensuring works from Australia can be used in foreign countries and vice versa.

Both the NLA and the CA have philanthropic arms to their structural make-up. In the UK the focus is on distributing significant royalties to help foster a dynamic news environment. In Australia the CA allocates 1.5% of their members licence fees to the Cultural Fund, an initiative that provides funding for various creative projects.

There are two primary differences between the CA and NLA.

• The NLA provides content as well as the rights to use that content to licensees. CA does not provide content; as the content supply arrangements are handled by their publisher members directly with media monitoring organisations.

• CA-licensed media monitoring organisations (MMO’s) such as MyMedia act as the Copyright Agency’s agent to provide the Downstream Licence to customers. The Downstream Licence is specific to the content provided by a media monitor and has a limited set of internal sharing rights. The NLA does not have that agency arrangement in place, and instead MMO customers are required to obtain their downstream or end user licences directly from the NLA.

So, what does this mean for you the client?

Well, it comes down to a thing called ‘Indefinite Access’.

In the UK you can opt for ‘Indefinite Access’ allowing licensees access to a publication indefinitely, this is because the NLA provides the content as well as the rights. In Australia CA does not provide access to content so they can’t offer indefinite access. As a media monitoring organisation customer, you can receive 12 months storage and additional storage rights can be obtained on a transactional basis through their RightsPortal website or on an ongoing basis through their annual blanket licences. 

If you’re a current client of MyMedia you would be familiar with the Downstream Licence that your service includes. All MMO’s in Australia use this licence and CA are very transparent in their dealings. If you’re ever been approached by an MMO promising better licensee rights simply head to the Copyright Agency website and you can read the T&C’s of each MMO contract in Australia.

The Downstream Licence used by media monitoring companies in Australia allows you to read and make hard copies of content received and digitally share this content with members of your own organisation. You can then store this content for 12 months.

However, are you aware you might need an additional Copyright Agency Licence? If you’d like to share the content via social media or store the content beyond the 12-month limit, you’ll need to speak with CA directly. There are a few more caveats to consider so be sure to check out the MMO Licensing FAQ on their website.

Starting to feel a little bit confused? Well, here’s where the waters really start to muddy.

In Australia major publishers have decided to go it alone and do direct deals with Media Monitoring Organisations because they feel they’re not being given enough royalties from their licencing agreements. In 2020 News Corp’s national title The Australian withdrew from the Copyright Agency’s MMO licencing arrangements and in February 2021 The Australian Financial Review stopped allowing customers of media monitoring agencies access to their articles unless the users were subscribers to the masthead.

Whilst our publishers go rouge, significant court proceedings are underway at the Copyright Tribunal from two media monitoring organisations. Meltwater started their court battle in 2017 and Isentia in 2018 following the expiry of their previous licences and the development of the proposed new licensing model by CA.

CA says they were seeking a licence agreement that would “provide both a fair return for the use of members’ valuable content and a pricing methodology more appropriate for digital use”. 

In October 2021 the Copyright Tribunal handed down a decision that largely sided with MMO’s, rejecting a proposed licence structure that would have increased costs by 300%. Instead, the licence proposed by Meltwater and Isentia was accepted which interestingly included a clause barring titles withdrawing from the licence once it came into effect. This will help stop titles going out on their own but that’s only if the ruling sticks.

Unfortunately it’s too late for AFR and The Australian who are now considered to be ‘excluded works since they became directly licenced’.

The copyright wars aren’t over yet with the Copyright Agency appealing the Copyright Tribunal’s decision. This legal stoush has essentially put CA in a holding pattern for blanket MMO development until everything is resolved. Likewise striking deals with AFR is proving tricky for MMO’s, frustrating clients who would like to get a complete understanding of their place within the media landscape.

The copyright issues in Australia are currently so convoluted that former boss of Isentia, John Croll told AFR in February this year that he has no immediate plans for his new media intelligence business Truescope to have a presence in Australia. Focusing instead on Singapore and New Zealand with an expansion into the US, this is despite the fact the development team is based in Australia.

The appeal of the decision made to the Copyright Tribunal in October 2021 was heard by the Full Federal Court of Australia in May 2022. Judgement has been reserved and we do not know when it will be handed down, so looks like we’ll have to wait just a little bit longer to discover what the future holds for Media Monitoring and Copyright in Australia.