They may be clever, but they don't enjoy copyright: Federal Court denies protection for newspaper headlines

The Federal Court has denied relief to Fairfax Media in its claim for copyright infringement against Reed International's ABIX service, which reproduced headlines from the Australian Financial Review ('AFR').

Background

As part of its ABIX media monitoring service, Reed distributed daily summaries of the Australian Financial Review which included verbatim copies of AFR headlines and a short abstract authored by Reed's own employees.

Fairfax argued that this practice infringed copyright in:

  1. the headlines,
  2. the article and headline combinations,
  3. the compilation of all articles and headlines in each edition of the AFR, and
  4. each edition of the AFR as a whole.

The decision

Justice Bennett found that:

  • headlines from the newspaper were not capable of being literary works in which copyright can subsist. Her Honour considered that according copyright protection to the title of an article "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."
  • Fairfax's evidence did not prove authorship of the article and headline combinations with sufficient clarity for Her Honour to rule that it could be a work of joint authorship in which copyright subsisted.
  • copyright subsisted within the selection, coordination and arrangement of content within each edition of the AFR, as well as each edition of the AFR as a whole.
  • Reed had not infringed the copyright in these latter two works, because the ABIX service merely reproduced the headlines from each edition, and did not take a substantial part of their arrangement, selection or co-ordination.

Implications

This is the first Australian judgment to rule on whether copyright exists in newspaper headlines. Justice Bennett's findings are consistent with earlier judicial statements concerning titles, slogans and short phrases, and will no doubt have wide implications for the increasingly complex relationship between media companies and organisations that aggregate and redistribute their content.

A detailed analysis of the judgment, including Justice Bennett's comments regarding the defence of fair dealing for the purpose of news reporting, and Reed's claim for estoppel, will feature in our next e-Mag.