Opinion of
Lord Hamilton in the case of
The Shetland Times Ltd against Dr Jonathan Wills and Zetnews Ltd.
Court of Session,
Edinburgh
24 October 1996
The pursuers (The Shetland Times
Ltd) own and publish The Shetland Times, a newspaper which carries local,
national and international news. The second defenders (Zetnews Ltd) provide a
news reporting service and trade under the name The Shetland News. The first
defender (Dr Jonathan Wills) is the managing director of the second defenders.
In The Shetland Times there
appear news items comprising texts under relative headlines. Photographs also
appear. In the issue of The Shetland Times printed on Friday, 11 October 1996,
there appeared an item, running to several paragraphs, concerning financial
difficulties about the Fraser Peterson Centre in Shetland. It appeared under the
headline 'Bid to save centre after council finding 'cock up''. A number of other
items also appeared in that issue, each under a relative headline.
The lnternet is a world-wide
electronic system used for the exchange of information. Such information may
include advertising material. Information is accessed through computers in
conjunction with the telephone system. Persons wishing to impart information or
to advertise on the Internet can do so by establishing for themselves a 'web
site'. Access to the information available at a web site is gained by callers
accessing a relative 'web address'.
The pursuers have recently
established such a web site. By this means they make available on the Internet
items, including photographs, which appear in printed editions of The Shetland
Times. Such items are stored electronically by reference to an index of relative
headlines, being the headlines which appear above those items in the printed
issues. Access to the text of the printed items is gained by the caller clicking
on the relative headline which appears on a 'front page'. The front page is the
display which first appears on access being gained to the pursuers' web site.
The pursuers' front page bears the heading 'The Shetland Times'. On an item
being accessed there appears below the text a note in the following terms:
'Contacting The Shetland
Times'
'Comments or suggestions on
this server (sic) please to webmaster@shetland-times.co.uk'.
The pursuers have expended
resources in establishing this web site. It is their expectation that, once this
information service becomes known to and is used by Internet users, the pursuers
will he able to sell advertising space on the front page on their web site.
The defenders also operate a web
site with a relative web address. The front page accessed by callers at that web
address is headed 'The Shetland News' and sub-headed 'Main Headline Page'. A
number of advertisements appear on that page.
Beneath those are a number of
news headlines.
Since about 14 October 1996 The
defenders have included among the headlines on their front page a number of
headlines appearing in recent issues of The Shetland Times as reproduced on the
pursuers' web site. These headline are verbatim reproductions of the pursuers'
headlines as so reproduced. A caller accessing the defenders' web site may, by
clicking on one of those headlines appearing on the defenders' front page, gain
access to the relative text as published and reproduced by the pursuers. Access
is so gained and subsequent access to other such headlines also gained without
the caller requiring at any stage to access the pursuers' front page.
Thus, access to the pursuers'
items (as published in printed editions and reproduced by them on their web site)
can be obtained by by-passing the pursuers' front page and accordingly missing
any advertising material which may appear on it.
In this action the pursuers seek
declarator that the defenders' actings constitute an infringement of copyright
owned by them. The case came before me on the pursuers' motion for interim
interdict.
The grounds of action are
twofold. The pursuers maintain that the headlines made available by them on
their web site are cable programmes within the meaning of section 7 of the
Copyright, Designs and Patents Act 1988 ('the Act'), that the facility made
available by the defenders on their web site is a cable programme service within
the meaning of section 7 and that the inclusion of those items in that service
constitutes an infringement of copyright under section 20 of the Act. The
pursuers also maintain that the headlines are literary works owned by them and
that the defenders' activities constitute infringement by copying under section
17 of the Act, the copying being in the form of storing the works by electronic
means.
Miss Milligan for the pursuers
maintained that in respect of each of those grounds of action the pursuers had a
prima facie case and that the balance of convenience favoured the grant of
interim interdict. Mr MacLeod for the defenders maintained that the pursuers had
no prima facie case on either ground and that the balance of convenience
favoured the reftisal of interim interdict.
Mr MacLeod did not dispute that
copyright subsisted in the pursuers in the text of items appearing in the
printed editions of The Shetland Times and in such texts therefrom as appeared
on the pursuers' web site. It was acknowledged that these were literary works.
It was, however, maintained that no copyright subsisted in the headlines. I
shall return to that issue in due course. The principal argument before me
related to the alleged infringement under section 20. This turned essentially on
an interpretation of section 7. That section, by sub-section (1), defines 'cable
programme' as meaning 'any item included in a cable programme service' and
defines 'cable programme service as meaning - 'a service which consist wholly or
mainly in sending visual images, sounds or other information by means of a
telecommunications system, otherwise than by wireless telegraphy, for reception
-
(a) at two or more places (whether
for simultaneous reception or at different times in response to requests by
different users), or
(b) for presentation to
members of the public, and which is not, or so far as it is not, excepted by
or under the following provisions of this section.'
Subsection (2) provides:
'The following are excepted
from the definition of 'cable programme service' (a) a service or part of a
service of which it is an essential feature that while visual images, sounds
or other information are being conveyed by the person providing the service
there will or may be sent from each place of reception, by means of the same
system or (as the case may be) the same part of it, information (other than
signals sent for the operation or control of the service) for reception by the
person providing the service or other persons receiving it...'
Mr MacLeod for the defenders
submitted (1) that the process involved in Internet communication did not
involve 'sending' information, (2) that, if it did, the sending was in the
circumstances done not by the pursuers but by the defenders and (3) that, in any
event, the service was an 'interactive service excepted by sub-section (2)(a).
No detailed technical
information was put before me in relation to the electronic mechanisms involved.
It was simply submitted that there was not 'sending' in an ordinary sense and
that a contrast could he made with cable television where there was sending by
transmission from the provider to the customer. On the Intemet a caller
electronically accessed information which was provided entirely passively.
In my view the pursuers'
contention that the service provided by them involves the sending of information
is prima facie well founded. Although in a sense the information, it seems,
passively awaits access being had to it by callers, that does not, at least
prima facie, preclude the notion that the information, on such access being
taken, is conveyed to and received by the caller. If that is so, the process may
arguably be said to involve the sending of that information.
If the information is being sent,
it prima facie is being sent by the pursuers on whose web site it has been
established. The fact that the information is provided to the caller by his
accessing it through the defenders' web site does not, in my view, result in the
defenders being the persons sending the information.
As to the argument founded on
section 7(2)(a), the contention was that, because it was possible for a caller
to contact the pursuers by the Internet and because comments and suggestions
were encouraged by the note below the text to be transmitted by this means, any
cable programme service was interactive and fell within the exception. It was
also submitted that information by way of comment and suggestion could also be
sent by this means to the defenders' web site. In my view, it is plainly
arguable that the exception does not apply. While the facility to comment or
make suggestions via the Internet exists, this does not appear to me to be an
essential element in the service, the primary function of which is to distribute
news and other items. In any event, it is arguable that this facility is a
severable part of the pursuers' cable programme service.
The resolution of the above
issues may in the end turn on technical material not available to me at the
hearing on interim interdict. On the information that was available and on the
basis of the arguments presented, the pursuers have, in my opinion, a prima
facie case that the incorporation by the defenders in their web site of the
headlines provided at the pursuers' web site constitutes an infringement of
section 20 of the Act by the inclusion in a cable programme service of protected
cable programmes.
As to section 17, Mr MacLeod
submitted that headlines such as 'Bid to save centre after council finding `cock
up'' and the other headlines complained of in the Summons were not original
literary works within the meaning of the Act and that accordingly there was no
infringement in copying them by any means. It was submitted that there was not
such expenditure of skill or labour as to make any of them original literary
works; they were 'ordinary in the extreme'. Mr MacLeod did not go so far as to
submit that no newspaper headline could ever attract copyright. His position was
that those complained of did not.
I was not referred to any
authority on this aspect. While literary merit is not a necessary element of a
literary work. there may be a question whether headlines, which are essentially
brief indicators of the subject matter of the items to which they relate, are
protected by copyright. However, in light of the concession that a headline
could be a literary work and since the headlines at issue (or at least some of
them) involve eight or so words designedly put together for the purpose of
imparting information, it appeared to me to be arguable that there was an
infringement, at least in some instances, of section 17.
The balance of convenience
clearly, in my view, favoured the grant of interim interdict subject to certain
amendments in the formulation of the conclusion. The defenders' activities of
which complaint is made have just begun. It was not suggested that they would
sustain any loss if prevented ad interim from making use of the pursuers'
material in this way. It was fundamental to the setting up by the pursuers of
their web site that access to their material should be gained only by accessing
their web directly. While there has been no loss to date, there is a clear
prospect of loss of potential advertising revenue in the foreseeable future. The
extent of any loss will be difficult to quantify. There was, in the
circumstances, no substance, in my view, in the suggestion that the pursuers
were gaining an advantage by their newspaper items being made available more
readily through the defenders' web site.
Certain amendments having been
made to the second conclusion, I granted interim interdict in terms of that
conclusion as amended.
