The Court of Appeal’s ruling that Marks and Spencer did not breach
the Newspaper Licencing Authority’s (NLA) copyright in the typographical
arrangement of newspaper cuttings, may well prove to be something of a
landmark in relations between the licensing body and the PR
Since its creation back in 1997 the NLA has held the threat of legal
action over the PR industry, and a victory, even if it is a partial one,
is more than welcome news for PROs.
But, while Marks and Spencer won the day over the issue of typographical
copyright, the Court of Appeal was not apparently unanimous in its
conclusions over the difficult issue of what constitutes a ’news event’.
The NLA is appealing to the House of Lords over the issue of
typographical copyright but is also now launching a fresh legal
challenge which will encompass literary copyright. The NLA proposes to
complete an analysis of all the cuttings copied by Marks and Spencer and
to follow the copyright trail that will inevitably lead to a profusion
of staff journalists and freelancers.
No small task when you consider the scale of the M&S communications
The relationship between the PR industry and the NLA has been an icy
one, although there has necessarily been some thaw since the Copyright
Tribunal in 1998. The IPR and PRCA have been consulting on a couple of
issues arising of relevance to the industry, and will undoubtedly have
to come to the table together with the NLA over the issue of e-copying -
a potential nightmare for all parties.
The ruling on typographical copyright, if it is upheld at the Lords, may
also provide a new opportunity for the industry to put its case to the
NLA and to contribute towards its copyright framework. But there may be
even bigger fish to fry. While the NLA concentrates on the minutiae of
copyright law, the IPR and PRCA have their sights set on the new
regulatory framework that arises as a result of the 1998 Competition Act
which has recently come into effect.
In principle, the NLA’s stance could be argued as working against the
aims and objectives of the new Act and the Office of Fair Trading, which
is examining business practices that are subject to allegations of
anti-competitive practices and restraint of trade, particularly those
While M&S can hardly be described as an SME, a large proportion of
consultancies operating in PR can. There may well be a case to be made
for those agencies which rely on cuttings, but because they cannot
afford the costs imposed by the NLA, are forced to stop providing this
crucial service, and proof of their effectiveness, to their clients.