Clipping and Copyright

Clipping is the process of selecting and gathering news from written media, websites, social networks, radio and television, amongst other channels of communication. The result is a curated collection of excerpts on subjects of interest to clients, delivered to a defined target audience. This activity is commissioned across a wide range of sectors and enjoys clear legal protection.

In this regard, Article 10 of the Berne Convention for the Protection of Literary and Artistic Works, signed on 9th September 1886 and subsequently revised in Paris (1896), Berlin (1908), completed in Berne (1914), and further revised in Rome (1928), Brussels (1948), Stockholm (1967) and Paris (1971), and amended in 1979, is particularly relevant. Since 1967, the Convention has been administered by the World Intellectual Property Organization (WIPO), which was incorporated into the United Nations in 1974.

Brazil, Portugal and a further 162 countries are signatories to this Convention. It was incorporated into Brazilian law by Decree No. 75,699 of 6th May 1975, and in Portugal it was approved by Resolution of the Assembly of the Republic No. 53/2009, DR I, No. 146, of 30th July 2009. The provision reads as follows:

Art. 10(1). It shall be permissible to make quotations from a work which has already been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summaries.

In Portugal, the courts have been ruling that newspapers hold copyright over their collective works (under certain conditions), whilst Article 75 of the Code of Copyright and Related Rights provides that certain uses are lawful without the author's consent — including the regular selection of articles from the periodical press in the form of a press review, as well as their reproduction, communication to the public or making available to the public.

The Second Court of the Intellectual Property Tribunal of Portugal, in a ruling that is not binding on other judicial bodies, has held that news clippings which identify their source and respect the concept of a "press review" — understood as the partial referencing of printed newspaper content — are entirely lawful and require no authorisation from the author. The relevant passage reads as follows:

"(...) A 'press review' shall consist of the selection of articles published in newspapers and magazines through their citation — for example, of headlines — but not their full transcription, which would go beyond a mere 'quotation from a work'. The press review aims to inform about the subjects, themes and articles published in the press over a given period and/or on a particular matter, notably by relevance to the target audience. It encompasses the citation of headlines, statements by interviewees, articles featured on the covers of newspapers, magazines or other periodical publications — in short, a more or less concise summary of what the press (national, international, regional, sports, financial, etc.) has published over a given period (daily or weekly review); it is, ultimately, a report on what has been published in the press, to the extent necessary to inform the public of what the press has covered. Such use of a work is lawful and unrestricted, and does not require the author's authorisation. (...)" (Case No. 74/13.4YHLSB)

In Brazil, Law No. 9,610/98 equally makes clear that the activity in question does not infringe any copyright, provided certain requirements are met. The relevant provision states:

"Art. 46. The following shall not constitute an infringement of copyright:

I — reproduction: (a) in the daily or periodical press, of a news item or informational article published in newspapers or periodicals, with mention of the author's name, where signed, and of the publication from which it was transcribed." (emphasis added).

The clipping of news content for informational purposes — without altering the substance of the publications, and drawing on full or partial articles in accordance with the applicable rules of each country — does not infringe copyright (as understood in Portugal) or intellectual property rights (as understood in Brazil). It constitutes nothing more than a quotation taken from a work already lawfully made available to the public.

It is worth noting that media monitoring companies do not profit from the resale of newspapers or news content. The very term "clipping" speaks to this distinction — it means a cutting or excerpt, akin to a press review. This is precisely what DIGITALCLIP does: it identifies the passage of a publication in which the client has been mentioned, nothing more.

Consider a concrete scenario: clients who already hold subscriptions to newspapers (where required by those outlets) and additionally engage a monitoring company to filter relevant articles — why should this constitute a licence infringement? Any intellectual argument to the contrary amounts to little more than unfounded sophistry.

The few public procurement processes that require clipping companies to obtain and pay for copyright licences are, in our view, unlawful and contrary to the public interest, for the following reasons:

1. A public administrator does not have the discretionary power to impose additional financial burdens on the public purse — and thereby on its social purpose — by requiring the payment of substantial sums for copyright licences, where the law expressly permits clipping to be carried out without such costs, provided the relevant requirements are met. In this respect, the Portuguese Civil Code is instructive:

Art. 334. "The exercise of a right is illegitimate when its holder manifestly exceeds the limits imposed by good faith, public morality, or the social or economic purpose of that right." (Art. 334 of the Civil Code).

2. A further concern is that public and private entities requiring media monitoring services would become entirely dependent on — effectively held hostage by — newspaper editors, who would have the power to grant or withhold licences for the monitoring of news. This would create serious dysfunction: there would be no means of tracking published content, and many companies and public bodies could find their reputations compromised by negative or false reporting.

3. In Brazil, some media outlets have been known to collude with certain clipping companies to secure public contracts in particular states, undermining the competitive integrity of procurement processes. In Portugal, Visapress was established as an intermediary for the issuance of licences for printed publications — a sound measure, though not mandatory in all clipping-related scenarios. To clarify:

a) In relation to subscription-based publications, clipping companies may deliver a press summary that highlights or marks the full article within the newspaper page, citing the source and authorship. In such cases, no copyright payment is required.

b) In the case of content already in the public domain — for example, material available on the internet or broadcast on free-to-air television and radio — clipping companies need only cite the source and authorship (where known). This falls squarely within the legal framework, and no copyright payment is required.

Given the sheer volume of information and misinformation circulating through the world's media, clipping companies are indispensable across many sectors of society. They must, of course, respect the content of the publications they monitor — they do no more than relay news items (alongside analytical commentary), without expressing any opinion of their own. They should not be required to pay simply for reporting that a piece of news — already public or accessed by subscription — has been published.

False information is shaping elections and providing pretexts for conflict. This, too, must be monitored, lest society become ever more susceptible to manipulation. Placing obstacles in the path of clipping companies is tantamount to restricting access to the truth — and to inviting chaos into an already turbulent information landscape.

Clipping is a noble and necessary activity. Amongst its many merits, it resists the dominance and manipulation of societies through information disseminated with ulterior motives. It is essential to filter, illuminate and bring to light — so that those responsible for combating disinformation may know when and where responsible journalism is making its greatest impact.