In the first decision internationally to examine and decide on
this issue, the Australian Federal Court recently determined that
copyright does not exist in newspaper headlines. This effectively
dismissed claims by Fairfax Media Publications Pty Ltd
(Fairfax) that LexisNexis Australia (Reed
International or Reed) had breached
Fairfax's copyright by using headlines from the Australian
Financial Review in its abstracting service. The decision
accords with earlier cases concerning titles, short phrases and
advertising slogans, and supports the long-held understanding that
these 'snippets' of text are too trivial and insubstantial to
attract copyright protection as 'literary works'. As stated by
Bennett J, 'The use of titles of articles and books for the
purposes of identification is well-known and routine...' In this
respect, the decision arguably represents a triumph of
common-sense, since it would be untenable for copyright to impinge
on the ability to reference and cite articles and consequently
access and share information.
BACKGROUND
Fairfax is the publisher of the national newspaper The
Australian Financial Review (AFR). Reed
International publishes the ABIX abstracting service by which
subscribers are provided with abstracts of articles published in
various newspapers and magazines, including the AFR. LexisNexis has
been creating abstracts of the AFR since the early 1980s. Each
abstract includes the headline of the relevant article (with the
headline rarely being altered), the by-line of the journalist who
wrote the article and a short summary of the article (written by
Reed staff). The appearance is not identical to the appearance of
the original article: the abstract does not include the
advertisements, photographs or quotes from the original articles;
the arrangement of the abstracts is dissimilar to the arrangement
of articles in the original publication; and the headline, though
unchanged, is also not presented in the same order. Irrespective of
these dissimilarities, Fairfax alleged that the Reed service
reproduces the arrangement of the articles and headlines in the
AFR.
In July 2007, Fairfax sued Reed for copyright infringement under
the Copyright Act 1968 (Act), alleging
that copyright subsisted in its newspaper headlines and that
reproduction of a whole or substantial part of the following works
in the ABIX abstracts amounted to an infringement of its
copyright:
1 each individual
headline in an AFR edition (headline);
2 each article,
including its headline and by-line, written by journalists employed
by Fairfax and published in an AFR edition
(article/headline combination);
3 the compilation
encompassing all the articles, including their headlines and
by-lines (and excluding other material such as photographs, market
tables and advertisements) in an AFR edition (article
compilation); and
4 each entire edition
of the AFR, including the articles, their headlines and other
material such as photographs, market tables and advertisements
(edition work).
Reed argued that copyright did not subsist in these identified
'works' (excluding the edition work, which was not in fact
substantially reproduced by Reed). Fairfax sought an injunction to
restrain future reproduction of these works by Reed. The original
trial was carried out in September 2008, but additional submissions
were accepted after the High Court decision in IceTV Pty Ltd v
Nine Network Australia Pty Ltd (2009) 239 CLR 458 (Ice
TV case).
THE DECISION
Are headlines literary works in which copyright can
subsist?
Fairfax put forward ten headlines as examples of 'works' in
which copyright subsisted, arguing that each of these was original
and 'literary' in conveying information. Fairfax provided evidence
of the 'creativity, thought, application, effort and experience'
involved in composing headlines.
Bennett J, after considering relevant authorities including the
Ice TV case, determined that Fairfax's failure to identify the
authors of the ten headlines was fatal to a finding of copyright.
'IceTV…suggests that there can be no finding of joint
authorship within the meaning of s10(1) of the Act where one of the
authors is unknown'. As a result, a presumption of originality was
not available.
'It is Fairfax's own submission that
headlines, which are generally written by sub-editors, often derive
in one way or another from the content of the body of the article,
which is written by the journalists. Therefore, the authorship of
the ten selected headlines cannot be assumed in the absence of
specific evidence.'
In addition, more than mere authorship is required. Copyright
will only subsist in works that are the result of mental effort of
a literary nature. As is the case with titles of publications,
advertising slogans, invented words and logos, Bennett J held that
'[h]eadlines generally are…simply too insubstantial and too short
to qualify for copyright protection as literary works'. Headlines
are 'too trivial' to be literary works, even if skill and labour
has been expended on creation. Thus, the provision of evidence by
Fairfax regarding the skill and effort involved in writing the ten
headlines did not distinguish this case from the relevant
authorities. Her Honour held that '[t]he majority of the headlines
in the sample editions are short factual statements of the subject
of the article. The addition of a pun does not, of itself…convert
such statements into literary works'. While the decision turned on
copyright principles, it led to a highly sensible result on policy
grounds:
'The headline and by-line
is…meta-information about the work, not part of the work, the work
being the article. The need to identify a work by its name is a
reason for the exclusion of titles from copyright protection in the
public interest. A proper citation of a newspaper article requires
not only reference to the name of the newspaper but also
reproduction of the headline… If titles were subject to copyright
protection, conventional bibliographic references to an article
would infringe.'
Importantly, however, Bennett J did not exclude the possibility
that a headline could attract copyright protection if the headline
bore specific characteristics:
'It may be that evidence directed to
a particular headline, or a title of so extensive and of such a
significant character, could be sufficient to warrant a finding of
copyright protection…but that is not the case
here.'
Does copyright subsist in the other works?
Bennett J held the following in relation to the remaining works
examined:
-
The article/headline combination: Fairfax
submitted that this 'work' was a 'work of joint ownership', whereby
the contribution of each author was not separate from the
contribution of the other. Bennett J found that headlines and
articles had distinct authors and could not be combined to form a
work of joint ownership. Her Honour held that the lack of an
identifiable author for this 'work' undermined a finding of
copyright.
-
The article compilation: Fairfax submitted that
Fairfax editorial staff must work around the finite spaces reserved
for the advertisements and other material for each page and
finalise the content and arrange the layout of the various articles
and headlines. Reed argued that the article compilation is a
'hypothetical work' which is merely a subset of the edition work,
since there is nothing to suggest that the article compilation has
a separate existence. Her Honour rejected this argument and held
that the article compilation 'represents a discrete aspect of the
preparation of the edition by particular editorial staff'. Evidence
showing the 'skill and labour expended in the page by page
selection and arrangements of the articles into the template'
supported a finding that the article compilation was a 'literary
work' in which copyright may subsist.
The article compilation and edition work both involved 'skill,
judgment, knowledge, labour and expense' and were copyright works.
However, by only extracting the headlines and by-lines of articles,
'Reed does not take any part of the selection, co-ordination and
arrangement that constitutes the original work of the compiler. It
does not take a substantial part of the Edition work or of the
Article Compilation'.
Are any defences available?
Despite finding that no infringement had been committed, Bennett
J considered, in obiter, defences raised by Reed.
Her Honour considered that fair dealing defences were relevant.
Reproduction in the ABIX service could amount to fair dealing for
the purpose of news reporting under s42(1)(b) of the Act. Whether a
reproduction of the headlines constitutes a fair dealing depends on
the context in which the headlines are used. Reed invested a
significant amount of skill, labour and effort in the preparation
of its abstracts, and use of a headline as a proper citation to the
newspaper article could constitute fair dealing (a proper citation
requires use of the headline in full).
However, Her Honour did not find that estoppel could be raised
as a defence since it was not shown that Fairfax had encouraged an
assumption, and that Reed had relied on that assumption, that
Fairfax would not assert copyright in respect of its headlines.
IMPLICATIONS
This decision is consistent with earlier decisions relating to
short titles, phrases and slogans. Summarising publications,
including the direct inclusion of the original headlines in order
to cite the source of the information, will not amount to copyright
infringement. Businesses offering, or intending to offer,
information to the public that involves news aggregation or
abstracting services are unlikely to be exposed to successful
claims of copyright infringement. Such businesses may continue to
use titles or headlines as long as they are used to accurately cite
the original source. However, these businesses must ensure that
they do not reproduce substantial parts of the original article,
which remains subject to copyright protection.
By contrast, publishers of news content cannot rely on copyright
protection to control the dissemination of content relating to
their headlines and article/headline/by-line combinations, unless
the content is so extensive and of such significant character that
it is distinguishable from the works examined in this decision.
The decision remains open to appeal by either party.
Authored by Tamsyn Hutchinson, Cornwall Stodart