UK: Content Wars: Paywalls, Payments, Pay-As-You-Go, Or Pay At All?

Last Updated: 15 March 2011
Article by Ivor Drake

The latest review of the UK's intellectual property laws announced by David Cameron in November 2010 proposes to "make them fit for the internet age". The review intends to look at a number of different areas, including, the barriers to new internet-based business models (such as, the cost of obtaining permissions from existing rights-holders). The review is scheduled to be completed by April 2011 and may shape the way the digital media industry in the UK develops with respect to the distribution of data, although previous reviews of the UK's intellectual property laws have had a restricted impact on the digital media industry to date.

A recent case highlights the tension between those who publish articles online and those who provide digital media monitoring services, which has put the focus back on the issue of content licensing and payment for digital content.

Meltwater case – A "Battle Royal"

In the case of The Newspaper Licensing Agency Ltd ("NLA") and others v Meltwater Holding BV and others ("Meltwater") [2010] EWHC 3099 (Ch), 26 November 2010, the NLA (an organisation which represents newspapers and collects royalties from newspaper clippings services) and 6 newspaper companies (the "Publishers") sued Meltwater (a digital media monitoring service which sends headlines, article excerpts and hyperlinks to articles in the form of an email to clients (the "Service")) for copyright infringement. This was on the basis that although Meltwater obtained a licence from the NLA to use the copyrighted information the end users of the Service did not have any licence to receive or use such information from the NLA. So the central question to be decided by the court was whether or not the end users of the Service required a licence themselves from the NLA to receive the copyrighted information contained in the Service.

Of particular importance to the NLA and Publishers was that the Service was a commercial operation as opposed to a free digital media monitoring service (such as Google News) some of which have separate arrangements with publishers for the dissemination of copyrighted information contained in news stories.

The NLA claimed that, in the absence of consent from it, the end users of the Service infringe copyright in the Publishers' headlines, and/or the Publishers' articles and/or the Publishers' databases either by:

  1. receiving and reading the Service and in so doing the end user makes a copy of it, and the copyright material contained in it, within the meaning of s.17 Copyright Designs and Patents Act 1988 ("CDPA"). The end user will also be in possession of an infringing copy in the course of business within the meaning of s.23 CDPA;
  2. clicking on a hyperlink contained in the Service to an article, the end user will make a copy of the article within the meaning of s.17 CDPA and will be in possession of an infringing copy in the course of business within the meaning of s.23 CDPA; and
  3. forwarding contents of the Service to clients an end user will issue to the public copies of the works within the meaning of s.18 CDPA.

The court found that when an end user receives an email from the Service a copy is made on the end user's computer and remains there until deleted. Further, when the end user views Meltwater news via Meltwater's website on screen, a copy is made on that computer. As such a licence to Meltwater to provide the Service might give rise to an implied licence to an end user to receive licensed material, but it could not result in an implied licence to make further copies of licensed material. Therefore, without a licence from NLA, the end users of the Service were infringing the Publishers' copyright in receiving the Service.

The court also examined whether the headline of an article could be protected by copyright. Following the ECJ ruling in Infopaq International A/S v Danske Dagblades Forening (Case C 5/08) 16 July 2009 in which it was established that text extracts as short as 11 words could attract the protection of copyright, Mrs Justice Proudman stated that:

"In my opinion headlines are capable of being literary works, whether independently or as part of the articles to which they relate."

She further explained that following the decision in the Infopaq case, the ECJ had made it clear that originality rather than substantiality was the test to be applied to the part extracted. Mrs Justice Proudman rejected the defendants' argument that a headline was part of the newspaper article and formed a single work and found that, based on the facts, the writing of a headline involved considerable skill in order to entice a reader by informing them of the content of the article in an entertaining manner and is therefore capable of attracting copyright protection.

Meltwater is set to appeal the judgment on the grounds that it "reaches a wrong interpretation of the law". Meltwater contends that the judgement means that simply browsing copyright protected content made freely available on the internet will infringe copyright if it is read without a licence. Secondly, using headlines of an article for bibliographic reference could also infringe copyright.

The decision in the Meltwater case runs in parallel with a claim made by Meltwater to the Copyright Tribunal which will rule on the reasonableness of the NLA's licensing terms for digital media content. Meltwater has challenged the NLA licensing scheme on two main grounds, firstly, that Meltwater's end users should not be required to agree to a licence in order to receive email reports containing hyperlinks to a news article, and secondly, that the NLA's licensing scheme (in relation to fee structure and terms) is unreasonable.

So the "Battle Royal" (as described by Mr Howe QC for the NLA and Publishers) between the parties is set to continue into 2011.

Digital Media Content Revenue Streams

Jeff Zucker (President and CEO of NBC Universal) famously said that "we can't trade analogue dollars for digital pennies" in 2008 and this statement was refreshed by Mr Zucker in 2009 when he stated "I think we are at digital dimes now". The statement expresses the view that the traditional media (broadcasters/print) has lost out in terms of a reduction in the number of viewers and advertising revenue, which is not being made up for on the digital side. Given the relative infancy of digital media when compared to traditional media, it is perhaps unsurprising that digital revenues lag behind the revenues of the traditional media. In addition, Mr Zucker's comments do not reflect that the cost of content distribution in the digital media space are reduced by having a low-cost delivery method (i.e. the internet) as opposed to the more costly traditional distribution methods of printing or producing CDs.

Revenue creating options for the receipt of digital media can be boiled down to: (i) subscription fees; (ii) micropayments; and/or (iii) advertising. Subscription and advertising based revenue models are well trodden paths. In terms of micropayments, PayPal suggests that its micropayment transaction rates are designed for businesses that process single purchases under £5, which are useful for digital goods, online gaming, music, media or software downloads1. PayPal has recently launched a micropayment solution for users of various websites (including Facebook) and the growing trend towards micropayments is likely to gather pace in the new year.


In line with the Meltwater case it is likely that digital content owners will become increasingly protective of their digital content both through licensing terms and litigious means as information licensing agencies and online publishers seek to protect their content and extract more revenue from their content.

The ever increasing consumption of digital media, the use of micropayments and the focus on extracting more revenue from digital media is likely to result in an increase in digital revenues, but it remains to be seen whether they will rival the so-called "analogue dollars" for media outlets.



The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.