In a case which has implications for publishers and content aggregators, the Federal Court confirmed in the recent case of Fairfax Media Publications Pty Ltd v Reed International Books Australia Pty Ltd1 that headlines are incapable of attracting copyright. As such, news aggregators may continue to reproduce headlines into abstracts when providing updates to subscribers.
Reed International Books Australia Pty Ltd (Reed) is a provider of a newsfeed service and provides its subscribers with updates of various publications, including updates from Fairfax Media Publications Pty Ltd's (Fairfax) Australian Financial Review (AFR). The updates generally consist of an abstract which reproduced the headline, typically without alteration from the original publication.
Fairfax commenced legal proceedings against Reed alleging copyright infringement as a result of the reproduction of each headline. Fairfax alleged that it owned the copyright in a number of 'literary works', including the headline itself as a discrete work and in each original article which incorporated the headline.
Reed, in its defence, argued that:
- copyright did not subsist in the headlines themselves;
- an article and its headline did not, collectively, comprise of a single work; and
- in any case, it was only reporting the news, which is a defence to copyright infringement.
The primary points of contention for Bennett J of the Federal Court were therefore whether copyright subsisted in the headlines as a discrete work or in the article in combination with the headline.
Whilst accepting that special skills are required to 'create' headlines, Bennett J considered that the headlines, the subject of this case, whilst informative and at times even humorous, are too insubstantial and too short to qualify for copyright protection. That is, they lack sufficient originality for the purposes of the Copyright Act 1968 (Cth) (the Act). This view is in line with international authority in the area. However, Her Honour did not rule out the possibility that some headlines could be copyright protected, but did not specify any criteria.
Reed argued that there are practical reasons for denying copyright protection to headlines. For example, headlines provide meta-information about the article. As such, they are copied in citations of an article. Should the copying of a headline be an infringement of copyright, then bibliographical referencing would also infringe copyright. The Court accepted this argument.
Fairfax also asserted that each article with its headline was a single work of joint authorship. However, as the evidence suggested that headlines were written by sub-editors who often weren't the authors of the articles, Bennett J found that an article and its headline, when combined in this way, were not a single work but were rather distinct and separate tasks.
It therefore could not be said that such articles and their headlines were a single work of 'joint authorship' as the combination did not result from two or more authors.
In any case, the Court would have accepted Reed's defence of 'reporting the news', which is a fair dealing under the Act.
Fairfax is considering an appeal to the decision.
- Content aggregators may continue to publish headlines given that headlines do not, generally, qualify as discrete literary works in themselves (ie copyright does not subsist in a headline).
- Even if the Court found that an article in combination with its headline was a single work, it would appear that reproducing the headline would not infringe this work as the headline would not constitute a substantial part of this copyright as it would lack sufficient originality.
- In any event, reproducing headlines of articles from other publishers will not infringe copyright if the reproduction qualifies as reporting the news.
- This decision also reinforces the significance of identifying the author or authors of a 'work' which is being relied on to bring a copyright infringement claim. One of the reasons why Fairfax did not establish that certain articles and their headlines, collectively, were each a work of single authorship was because it did not identify a particular author of those alleged works.