In brief

  • The UK High Court has held that newspaper headlines and short extracts from newspaper articles may be protected by copyright, NLA v Meltwater.1 This decision is a victory for creators of news content against news aggregator services.
  • In stark contrast, the recent Australian decision of Fairfax v Reed2 held that the newspaper headlines and article by-lines in issue were not protected by copyright. The decision did not rule out protection of headlines and by-lines in all circumstances and creators of news content in Australia may yet bring this question back for judicial consideration.
  • Given the potential global market for news aggregator services, it seems unsatisfactory that Australia and Europe are out of step with each other on this issue. If the Australian Law Reform Commission conducts a review of copyright legislation, as foreshadowed by the Attorney-General in September this year, it remains to be seen whether this issue is included in any referral.  

Background

The claimants in the recent UK High Court case were Newspaper Licensing Agency Limited (NLA) and six major news publishers. The NLA is a company which licenses the use of newspaper content on behalf of its members, who include the six major news publishers who were also claimants.

The defendants in the proceedings were Meltwater Holding BV, Meltwater News UK Limited (together, ‘Meltwater’) and the Public Relations Consultants Association Limited (PRCA).

Meltwater is a multinational group which provides an online commercial monitoring service called Meltwater News. Meltwater agreed to obtain a licence from the NLA to provide this service. The Meltwater News includes:

  • a hyperlink to each article (which link is a citation of the article headline)
  • the opening words of the article after the headline, and
  • an extract from the article which shows a key word in context.

The PRCA is a professional association which represents the interests of its members, who are UK public relations providers. The members of the PRCA (referred to in this article as ‘the end users’), use the Meltwater News service and are required to obtain a licence from the NLA to do so.

The claimants sued the defendants for copyright infringement. The ultimate issue for the court was whether the end users required a licence from the NLA because their conduct would otherwise amount to an infringement of copyright owned by the news publishers.

From the NLA’s perspective, this issue was important because it affected the amount that the NLA would charge Meltwater for its licence. If the end users did not require a licence, then the NLA would charge Meltwater more for its licence.

The court noted that the publishers of the newspapers feel a strong grievance against Meltwater. The publishers devote very substantial resources to developing their websites and content, and Meltwater makes millions of pounds from scraping data from the publishers’ websites and effectively on-selling that data.

Copyright in headlines

The PRCA submitted that newspaper headlines are not copyright works as they are too short, banal and factual. The PRCA argued that the headlines are part of the articles, rather than independent copyright works.

The NLA submitted that at least some headlines are independent copyright works. The NLA considered that it did not need to establish that every headline in issue is a copyright work, as a licence would be required by the end users if some of the headlines are copyright works. The court received evidence from the CEO of Associated Newspapers Limited as to how the headlines are created, as well as illustrative examples of headlines from the Daily Mail.

Interestingly, the court referred to the Federal Court of Australia’s recent decision in Fairfax v Reed and noted that, while the analysis in that decision is persuasive as a historical analysis of the law, ‘any historical perspective has for the purposes of this Court been overtaken by the decision of the ECJ in [the case of] Infopaq’.

In the Infopaq case, the European Court of Justice reviewed the Information Society Directive (2001/29) and determined that the reproduction of 11 consecutive words from a newspaper article may constitute an infringement of copyright in the article, provided that the extract contains elements which are the expression of the intellectual creation of the author.

On the basis of the reasoning in Infopaq, the court held that some of the headlines in issue are certainly independent copyright works. Any headlines which are not independent copyright works are part of the newspaper article to which they relate.

Copyright in text extracts

The court then analysed whether the text extracts are a substantial part of the newspaper articles from which they derive, such that if the end users reproduce those extracts without a licence they infringe copyright in the articles.

The text extracts comprise the headline, opening words and a key word in context. Alternatively, where the headline is a separate copyright work, the text extracts comprise the opening words and key word in context. In terms of the size of the text extract (including the headline), it did not exceed 256 characters including spaces.

The court stated that the proper test is not to consider whether the part taken is itself sufficiently original to amount to a copyright work in its own right. The effect of Infopaq is that:

even a very small part of the original may be protected by copyright if it demonstrates the stamp of individuality reflective of the creation of authors of the article. Whether it does so remains a question of fact and degree in each case.

The court recognised that the text extracts comprise striking features of the article and are important in drawing the reader into the news story. The court held that the text extracts contained the necessary expression of intellectual creation of the author and therefore amounted to a substantial part of the article.

Infringement

The court accepted that there was infringement of copyright in the headlines, text extracts and/or the articles themselves, on the basis that when an end user:

  • receives an email containing Meltwater News, a copy of the headlines and text extracts is made on the end user’s computer and remains there until deleted
  • views Meltwater News via Meltwater’s website, a copy of the headlines and text extracts is made on the end user’s computer
  • clicks on a hyperlink/headline in the email containing Meltwater News, a copy of the article on the publisher’s website is made on the end user’s computer, and
  • forwards a hyperlink/headline to a client, the end user will make further copies of the headline, and is also forwarding a copy to the public.  

The terms and conditions of some of the publishers’ websites stipulate the websites cannot be used for commercial purposes without the publishers’ express consent, and that commercial media monitoring services and their customers require a licence to use the content. There was no detailed argument on the effect of these terms and conditions. The court was nonetheless prepared to find that, in principle, copying by an end user through clicking on the article hyperlink and being taken to the publisher’s website, is infringing conduct which is not permitted by the terms and conditions of the website.

Fair dealing defence

The court considered that the end users’ conduct was not fair dealing for the purpose of:

  • criticism or review, or
  • reporting current events.

The defence of fair dealing for the purpose of criticism or review was not available because the simple act of viewing the text extract does not amount to criticism or review, even if the end user applies a critical mind in the process.

The defence of fair dealing for the purpose of reporting current events was not available because the Meltwater News service was not provided to the public generally, and contained snippets in which the end users’ clients were mentioned, rather than news.

Additionally, the court had regard to the large scale of use of the text extracts and noted that a single end user could receive and copy text extracts from 50,000 articles each year. For this reason, the end user’s conduct could not be considered ‘fair’.

Conclusion

The UK High Court held that without a licence from the NLA, the end users of the Meltwater News infringe copyright owned by the publishers.

Comparison of UK and Australian positions

It is easier in the UK than in Australia to prove that copying short literary works amounts to copyright infringement. From an evidentiary perspective, it also appears to be easier to prove authorship of a copyright work in the UK. The UK High Court was willing to accept illustrative examples of the copyright works and did not require the specific evidence as to authorship required by the Federal Court of Australia in Fairfax v Reed.

The UK High Court held that in those cases where the headline was not an independent work, the headline was part of the article. The Federal Court of Australia considered that the headline was not part of the article because it was created separately. In both cases, the court noted that the headline was written by an editor and the article was written by the journalist. Therefore, the facts in each case did not differ on this point.

The UK High Court held that the fair dealing defence of reporting news did not apply. Conversely, the Australian court held that the equivalent Australian defence did apply. One point of difference in the cases is that the ABIX service (considered in Fairfax v Reed) provided its own summary of the articles in dispute, which may account to some extent for this difference in approach.

Could headlines still be protected in Australia?

The legislative framework in the UK is not identical to that in Australia. However, there are sufficient similarities in terms of the legislation and policy considerations such that one might anticipate that courts in each jurisdiction would come to the same conclusion on whether short literary works are protected by copyright.

Moreover, the Federal Court in Fairfax v Reed was clear that it was not saying that headlines or by-lines could never be copyright works, or that headlines could never form part of the article to which they relate. The court considered it fatal to Fairfax’s case that the evidence as to authorship (prepared before the decisions in IceTV v Nine Network (2009) and Telstra Corporation v Phone Directories Company (2010), as discussed in our article ‘Newspaper headlines not protected by copyright’3) did not relate to the specific headlines in issue. Given this, creators of news content in Australia may well bring this issue back to be determined by the court and an Australian court could come to a different conclusion in a different case.