In the struggle for online survival, publishers in Australia and the UK have resorted to the courts to claim copyright in the headlines to their articles. Given that the courts in Australia as recently as 2009 declined to afford copyright protection to TV program titles, and given that book titles, other work titles, slogans and short phrases have been declined copyright, this looks like a bold move. In the UK it paid off — but not in Australia.
In 2010, Fairfax Media sued Reed International Books in the Federal Court of Australia over its news subscriptions service, ABIX which enables subscribers to search across a wide range of publications in a narrow area of interest and to skim the articles of relevance.
The court heard evidence that Reed’s employees write summaries of articles from newspapers and magazines and that Reed staff identify and compile the summaries by use of the same headline used in the original Fairfax article. Fairfax claimed infringement of copyright in its headlines and in the compilation of its newspapers. Reed argued that there was no copyright in the headlines, they did not reproduce Fairfax’s compilation and that in any event their service was protected by the Fair Dealing defence under the Copyright Act as reporting of news.
While Justice Bennett found there was copyright in the compilation of the articles in Fairfax’s newspapers she held that Reed’s service did not reproduce that compilation. The judge was fatally critical of Fairfax’s evidence of authorship of the headlines. Rather than providing evidence of each employee’s involvement in writing the article and the headline, Fairfax relied upon a general affidavit referring to sample articles as to how its employees worked on articles and headlines — leaving her to conclude it must have been done that way for all editions. Bennett found that Fairfax had failed to prove authorship this way.
In her exhaustive examination of English and Australian case law, text books and dictionary definitions, Bennett concluded that there could be copyright in a headline where there was evidence, "of so extensive and such a significant character … to warrant a finding of copyright protection".
Bennett relied upon the long held notion that copyright affords protection to "exertion and labour" — and not to literary merit. So a clever headline doesn’t deserve copyright for mere cleverness — but nor will a headline that a "deal of skill and effort go into producing" necessarily be a literary work. In other words, it is not just skill and labour that is required but for that skill and labour to produce a literary work. In this, Justice Bennett is saying a line of Imagist poetry or of a haiku may not necessarily be a literary work. She held that "Fairfax has failed to prove that the 10 selected headlines amount to literary works in which copyright can subsist".
The judge also held that Reed was entitled to rely upon the defence of fair dealing for reporting the news. Reed’s summaries also contained a citation of the source article, the author’s name and the page number of the original article — as required by the fair dealing provisions of the Copyright Act.
Bennett expressed her personal position quite plainly when she said, "’In my view, to afford published headlines, as a class, copyright protection as literary works would tip the balance too far against the interest of the public in the freedom to refer or be referred to articles by their headlines." She is at pains to point out that this view does not preclude the possibility of copyright subsisting in headlines.
The UK High Court was referred to the Fairfax decision a few months later in Meltwater, a case involving media monitor companies who provided a subscription service licensing press clippings to clients (end users).
The court was required, among other things, to determine whether there was copyright in the headlines of the publisher plaintiffs and if they were being infringed by the use of the media monitor service company’s end users. Whereas in Fairfax, Reed’s ABIX service used summaries of the articles that did not infringe copyright in the articles, the media monitor services in Meltwater provided actual press clippings taken from the articles.
Justice Proudman held that her court was bound by Infopaq, a 2010 European Court of Justice decision which dealt with copyright protection under European law provisions. This case held that extracts of a copyright literary work are themselves protected — provided they contain "elements which are the expression of the intellectual creation of the author of the work". Infopaq, Proudman held, "makes it clear that originality rather than substantiality is the test to be applied to the part extracted."
Proudman characterised the Fairfax decision as relying on substantiality alone. This, despite the fact that Bennett referred not just to the "extensiveness" of a headline but also to its "significant character" or to its originality as a literary work. Arguably Justice Bennett’s test of extensive and significant character of a headline does fit into Infopaq’s "elements which are the expression of the intellectual creation of the author of the work". What is to say these "elements" in Infopaq do not comprise the substantiality — in a qualitative and/or not just quantitative sense — and significance of the work, as laid out in Justice Bennett’s decision?
In respect to the fair dealing defence, Proudman held: "It seems tortuous to say that copying for the purpose of seeing mentions of the end Users’ clients in the news and stories with which they have been concerned is "reporting current events".
Here seems to be the rub. In Fairfax, Justice Bennett focuses upon the headline as content rather than a service, and she sees "the interest of the public in the freedom" of access to that content. In Meltwater Justice Proudman focuses upon the headline as a service. Reed’s ABIX service is very likely used in a similar fashion to Meltwater’s end users — but the difference lies in how the role of copyright law is viewed and whether a headline is regarded as a piece of commercial property deserving monopoly protection or as a universal reference permitting access to information.
The different direction these decisions takes us also has a cultural impact. With mobile SMS and Twitter’s 140 character tweet cap, have we altered how we value brevity of expression? Are our tweets "the expression of the intellectual creation of the author" — or would that be dignifying our every recorded inanity with copyright protected commodification?
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