Fairfax Media Publications Pty Ltd (Fairfax)’s action against Reed International Books Australia Pty Ltd (Reed) for infringement of copyright in newspaper article headlines has been dismissed by the Federal Court of Australia: Fairfax Media Publications Pty Limited v Reed International Books Australia Pty Limited [2010] FCA 984.

In reasons handed down on 7 September 2010, the court held that copyright does not subsist in newspaper article headlines on the basis that they are not substantial enough to qualify for copyright protection.

The court also emphasised, consistent with recent copyright decisions in Australia, that copyright owners must identify with precision the author or authors of the particular work in issue. For works of joint authorship, it will also be necessary to put on evidence to show that, for the particular work in issue, the contribution of each author is not separate from the contribution of the other author(s).

The reasoning in this decision is significant for:

  • those who seek to protect titles (whether of books, songs, films, television shows or otherwise) or slogans (such as advertising slogans, which may achieve better protection through the Trade Practices Act or trade mark registration)
  • large organisations which may find it difficult to identify the authors of copyright works (for whom systems to capture this information may assist), and for those who produce works of joint authorship, and
  • those who have business models which involve sourcing, collating and/or redistributing information.  

The parties are still within time to appeal the decision.

Background

Fairfax is the publisher of the Australian Financial Review (AFR). For more than ten years, Reed has been delivering a service known as ABIX, which provides subscribers with an electronic summary of articles published in various newspaper and magazines, including the AFR. In relation to around half of the articles which appear in each edition of the AFR, Reed includes the article headline and by-line, without alteration, in the ABIX service. Reed also adds its own summary of the article.

Fairfax sued Reed in 2007 for its acts of copying and distributing the AFR article headlines and by-lines. Fairfax alleged that Reed’s conduct infringed copyright in four different copyright works, being:

  • each individual newspaper headline
  • each article, including headline and by-line
  • the compilation of all articles, headlines and by-lines in an AFR edition, and
  • each entire edition of the AFR.

The parties asked the court to reserve its judgment until the High Court had handed down its decision in IceTV Pty Ltd v Nine Network Australia Pty Ltd (2009) 239 CLR 458.

Headlines

Fairfax sought to establish that each headline in the AFR was an original literary work, deserving of copyright protection. Evidence was provided about the significance accorded to headlines by the newspaper industry generally, and about the skill and creativity involved in headline writing.

While the court agreed that the use in newspaper headlines of ‘devices such as puns and double entendres may be clever’, this was not sufficient to accord copyright protection to the headlines. The court considered that generally headlines, like the titles of other types of works, are simply too trivial and insubstantial to be literary works. Put simply, the court considered that headlines were too short to deserve copyright protection.

The court qualified its finding on this issue by stating that in some instances an individual headline may be sufficiently substantial to warrant copyright protection. However, at what point a headline would become sufficiently substantial to attract copyright protection remains to be seen. The court also made clear that in seeking to protect a headline, it would be necessary to identify the author or joint authors of the particular headline in issue.

Article/headline combination

Fairfax also sought to establish that each article, together with the headline and by-line, constituted a copyright work (the article/headline combination). It was not in dispute that each article in the AFR was itself an original literary work.

Fairfax submitted that the article/headline combination was a work of joint authorship, a substantial part of which had been reproduced by Reed. Under the Copyright Act, joint authorship occurs when a work has been produced by the collaboration of two more or authors and the contribution of each author is not separate from the contribution of the other author(s).

Fairfax provided evidence that the articles were primarily written by a journalist (with the editing assistance of one or more editors) and the headlines were written by one or more editors. However, this evidence went to the process of authoring the article/headline combination generally, rather than to the specific examples which were before the court. It is worth noting that the hearing in this case occurred before decisions were handed down by the High Court in IceTV v Nine and the Federal Court in Telstra v Phone Directories.1 These two decisions placed a greater emphasis on precisely identifying the actual authors of works than had been previously considered necessary.

The court held that, on the evidence before it, the headline and the article were actually separate from one another. The article/headline combination was held not to be a copyright work of joint authorship because the contribution of the author of the headline was separate from the contribution of the author of the article.

The court appeared to leave open the possibility that in some circumstances, if the evidence was sufficient to show that the contribution of each author was not separate from the contribution of the other(s), an article and headline may be considered a copyright work of joint authorship (for example, see [97], [98] and [100]).

However, the court noted that even if the article/headline combination was considered a single copyright work, Reed’s conduct in reproducing the headlines and by-lines would not amount to a reproduction of a substantial part of the works and therefore would not infringe copyright. The basis of her Honour’s reasoning was that:

If the author would not have copyright in the part standing alone, the part reproduced will not be a substantial part (IceTV at [37]).  

Edition work and article compilation

It was not disputed that the whole of each edition of the AFR constituted a separate copyright work of joint authorship (the edition work).

Similarly, Fairfax was successful in its submission that the combination of articles, headlines and by-lines in each AFR edition (excluding other material such as photographs and advertisements) was a copyright work of joint authorship (the article compilation).

In relation to the edition work and the article compilation, the court placed a caveat on its finding on copyright subsistence by saying that copyright subsisted in these works:

assuming that it is not necessary to identify each and every Fairfax employee who were joint authors of the compilations by name rather than by job description […] .  

In any event, the court found that Reed’s conduct infringed neither the edition work nor the article compilation. The court reasoned that the originality in these two works lies in the:

skill, judgment, knowledge, labour or expense involved in gathering, selecting and/or arranging the material included in the compilation.

Since Reed did not reproduce the arrangement of the articles which make up the edition work and the article compilation, it was not liable for infringing copyright in these works.

Defences

In obiter, the court considered the two defences raised by Reed.

The first defence was that of fair dealing for the purpose of reporting news. The court held that this defence would have been available to Reed, and commented on the fact that Reed contributed its own skill and effort by drafting the abstracts of the newspaper articles. The fact that Reed’s conduct was commercial in nature would not have disentitled it from relying on the fair dealing defence.

The second defence was the equitable action of promissory estoppel. The court rejected Reed’s argument that Fairfax had allowed Reed to make use of AFR material for many years without taking action, and should therefore be estopped from taking steps to change this state of affairs.

Conclusion

Recent decisions in Australian copyright cases suggest that the balance struck by the law between the interests of creators of content and redistributors of content is in the process of being recalibrated in favour of the latter. This decision, which may yet be appealed, is consistent with this trend.