Fairfax Media Publications Pty Ltd v Reed International Books Australia Pty Ltd1
In a decision with far-reaching implications for Australia’s creative and media industries, Justice Bennett of the Federal Court has recently ruled that newspaper headlines do not, as a class, enjoy copyright protection. The Court’s reasoning continues the pattern which has emerged in the wake of the High Court’s decision in IceTV Pty Ltd v Nine Network Australia Pty Ltd,2 emphasising the need for claimants to precisely define and prove the authorship of copyright works as a precursor to any infringement claim.
As part of its ABIX service, Reed International Books produces a daily digest of newspaper content, including the articles appearing within Fairfax Media Publications’ Australian Financial Review. Forty to sixty percent of the articles appearing in the AFR each day are summarised in this manner by the ABIX service for the benefit of its subscribers. The ABIX summaries include a verbatim reproduction of the article headline and byline, followed by a short abstract authored by Reed’s own staff. The ABIX service does not reproduce any photographs or other content from the AFR, nor does it present the summaries in the same order or layout as the relevant daily edition of the newspaper.
Fairfax claimed that Reed’s ABIX service infringed its copyright in four works embodied within each edition of the Australian Financial Review:
- each individual headline;
- each article, including its headline and by-line as written by Fairfax journalists (‘the article / headline combination’);
- the compilation of all articles, including their headlines and by-lines, in each edition (‘the article compilation’);
- each entire edition of the AFR as a whole.
Fairfax did not seek any damages for the alleged infringement,3 but instead sought declarations that its copyright in each of the works had been infringed and an injunction restraining future infringement by Reed. At the request of Fairfax, the case was decided on the basis of two sample editions of the AFR from June and November 2007.
The key question: were these original works?
Section 32 of the Copyright Act 1968 (Cth) limits the subject matter in which copyright subsists to ‘original works’. The key issue before the Court was whether each of the four works fell within the meaning of this term. In other words, were they:
- literary, dramatic, artistic or musical works within the meaning of the Act and its associated jurisprudence; and
- original to the extent they could be proven to have originated from an author or joint authors?
Subsistence of copyright in individual headlines
In applying this test to article headlines, the Court focused upon whether they could, as a class, be considered ‘literary works’ within the meaning of the Act. Fairfax selected ten headlines from the two sample editions for consideration, and filed evidence of the considerable skill and effort invested by sub-editors in their creation, as well as the purpose and value of a headline in “tell[ing] the story” of the article while also enticing readers to read further.
Although Her Honour recognised that the AFR’s headlines may have been both ‘literary’ and ‘original’, Justice Bennett stressed that copyright can only exist in a work and that “[h]eadlines generally are, like titles, simply too insubstantial and too short” to be characterised as such.4 Her Honour noted:5
There may well be writings of original words or phrases that simply do not reach the level of constituting a “work”, regardless of literary merit. This is not just because they are short, as a deal of skill and effort can go into producing, for example, a line of exquisite poetry. It is because, on its face and in the absence of evidence justifying its description as a literary “work”, the writing does not, qualitatively or quantitatively, justify that description. A headline is, generally, no more than a combination of common English words (Dicks v Yates at 88 per Jessel MR). It ‘does not involve literary composition, and is not sufficiently substantial to justify a claim to protection’ (Francis Day at 122-123); it does not, in the words of Jacobson J in Sullivan at , have ‘the requisite degree of judgment, effort and skill to make it an original literary work in which copyright may subsist’ for the purposes of the Act.
Justice Bennett accepted that evidence directed to a particular headline might warrant a finding of copyright protection, however she found that this was not the case for the ten AFR headlines in question, as Fairfax had relied upon general evidence about the creation and authorship of headlines as a class, and specific evidence with respect to only two of the ten headlines.
Public policy considerations
Considerations of public policy also factored significantly in Justice Bennett’s findings. Reed had submitted that a headline serves as the title of a newspaper article, and highlighted the negative consequences to bibliographic referencing if authors were unable to cite or refer to newspaper articles by their title. Fairfax countered that such practical difficulties could be remedied by Parliament and should not bear on the question of whether copyright subsists in the first instance.
Justice Bennett was swayed by Reed’s submissions, as well as the comments of the High Court in IceTV, to find that affording copyright “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.” 6
Originality of the headlines and the presumption afforded to anonymous works
Fairfax chose not to adduce evidence regarding the authorship of the contended works embodied within the AFR, including each individual headline, relying instead upon s 129(2) of the Act which presumes the originality of published works where “the identity of the author is generally known or can be ascertained by reasonable enquiry”. Fairfax claimed that given the number of journalists, editors, and sub-editors working on each edition of the AFR, it was not reasonable for a third-party to ascertain the authorship of the works and therefore originality was to be presumed.
Justice Bennett rejected such characterisation of reasonableness from the perspective of a party external to the newspaper. She noted that:7
“Fairfax did not make any attempt to ascertain the identity of the authors from its own employment and attendance records, or make inquiries of the particular employees engaged in the creation of the sample editions or the selected headlines and articles … The onus does not shift to Reed to identify those authors, failing which Fairfax will be entitled to the benefit of a presumption that its works are original.”
In the absence of any evidence as to why the authors could not be ascertined, the presumption within s 129 was found not be available to Fairfax in proving originality of the headlines, even if they had been found to have been literary works capable of protection.
The article, headline and byline combinations
While it was not in question that the articles from the June and November 2007 editions of the AFR were original literary works, a question before the Court was whether the combination of an article, its headline and associated byline could also be considered a discrete original literary work.
Were they works of joint authorship?
Fairfax characterised the article and headline combinations in the two editions of the AFR as the work of both a writer credited in the byline and anonymous sub-editors who edit the article and derive the headline from its contents. Rather than adduce evidence of the authorship for specific articles, Fairfax invited the Court to draw inferences from general evidence abouts its editorial processes.
In evaluating this contention, Justice Bennett echoed the High Court’s comments in IceTV, reiterating the central role of authorship in the statutory protections given by the Act8 and the requirement that a work must be borne of a single author, or ‘joint authorship’ in which the collaborative efforts of multiple authors “is not separate from the contribution of the other[s].”9 Her Honour opined that the mere editing of an article in preparation for publication is not sufficient to attract joint authorship, and that the process of writing the headlines was a distinct investment of skill and labour into producing a separate work (though not, as she had found earlier, a literary work for the purposes of the Act).
Without direct evidence to substantiate the claim that the author of each headline was also a joint author of its associated article, the article / headline combinations were found not to be a discrete work of joint authorship in which copyright could subsist.
The article compilation and each edition as a whole
Her Honour was satisfied that both the article compilation in each edition, and each edition taken as a whole were original works for the purpose of the Act, in that they originated from the AFR’s editors and sub-editors, and were produced through the exercise of considerable skill, judgment, knowledge, labour and expense.
Although Justice Bennett had ruled only two classes of works at issue were original literary works in which copyright could subsist, Her Honour regardless addressed the question of infringement against all four classes:
- With respect to headlines, there was little doubt that Reed’s verbatim reproduction of the headline in its ABIX service would have amounted to infringement had copyright been found to subsist.
- However Reed’s reproduction of the article headline would not have amounted to a substantial part of the article / headline combination as Courts will not regard reproduced parts of a work considered too insubstantial to be protected in their own right to be a substantial part for the purposes of infringement.
- With respect to the article compilations and each edition of the AFR—the only two works in which copyright had been found to subsist—Justice Bennett rejected Fairfax’s contention that writing each headline should inform the assessment of authorship and originality in both compilations. Instead Her Honour found that the originality, labour and skill that manifests within these works are in the arrangement of articles and their headlines, not their content. Reed had not reproduced a substantial amount of the selection, co-ordination and arrangement of the AFR’s articles and headlines in each edition, and therefore had not infringed Fairfax’s copyright in those compilations.
Comments on fair dealing for reporting news and estoppel
Having decided the case in Reed’s favour by finding that neither of the two copyright works had been infringed, Justice Bennett addressed some of the remaining questions by way of obiter. In particular, it was noted that:
- Had infringement been found, Reed could have relied on the defence of fair dealing for reporting news.10 It would not have been fatal to Reed’s defence that its ABIX service might offer an indirect commerical substitute for reading the AFR, that some of the archived abstracts and headlines were no longer current news, or that it was not a traditional periodical.
- Contrary to a claim by Reed, Fairfax is not estopped from asserting that Reed’s ABIX service infringes any copyright within the AFR. Reed had argued that Fairfax’s long-standing knowledge of, and even subscription to, ABIX without raising the issue of copyright infringement created the assumption that Fairfax would never bring such a claim. Justice Bennett found that Fairfax had not created or encouraged such an assumption, and that there was insufficient evidence to show that Reed had relied on any such assumption to its detriment when it acquired the ABIX service.
The commercial context and legal implications
This case comes at a particularly tumultuous time for traditional media companies who are finding the fundamental assumptions of their business models challenged by the digitisation of news content and changing reader behaviour. The war of words between these news organisations and online aggregators—such as Reed’s ABIX service, Google News and aggregation-plus-commentary websites such as The Huffington Post and Crikey.com.au—has particularly intensified over the past eighteen months.
In August last year, for instance, Fairfax Business Media’s publisher, Michael Gill spoke out against commentary website BusinessSpectator.com.au, claiming “[t]heir model of the world is to plagiarise things”.11 Michael Thomson, the editor of the Wall Street Journal had previously referred to online news aggregators as “parasites” of his publication’s content,12 while Rupert Murdoch, Chairman of the Journal’s parent company News Corporation, has called services such as Google News “content kleptomaniacs”.13
Amid such heated debate, Justice Bennett’s ruling that headlines do not, as a class of work, enjoy copyright protection is of great commercial significance to the media sector. However Her Honour’s judgment also demonstrates the broader shift in judicial focus in the wake of IceTV. Courts now appear to place far greater emphasis on the need for parties claiming copyright infringement to:
- prove authorship of the works in question by adducing evidence specific to each work,
- clarify the precise nature of the infringed work, and
- substantiate that it is a work in which copyright can subsist.
Justice Bennett’s engagement with public policy arguments within her findings—having noted and extended the similar reasoning of the High Court in IceTV—may also indicate a greater willingness to consider such submissions in future copyright infringement claims.
Interestingly the UK High Court has also recently considered similar issues in Newspaper Licensing Agency Ltd and others v Meltwater Holding BV and others,14 and has come to largely different conclusions. In considering whether newspaper headlines are a work in which copyright can subsist, Justice Proudman quoted extensively from the judgment in Fairfax v Reed, before applying the approach expressed by the European Court of Justice in Infopaq International A/S v Danske Dagblades Forening15 and ultimately finding that headlines are a work in which copyright can subsist. Her Honour also found it “tortuous” to suggest that reproduction of newspaper headlines and articles by media monitor users was a ‘fair dealing’ for the reporting of news under the Copyright Designs and Patents Act 1988 (UK).
Fairfax has not filed an appeal, so it would seem that the specific questions arising from this case in Australia have been settled, at least for the moment. However the manner in which the Court’s shifting approach to infringement claims manifests in other sectors, or indeed new frontiers of digital content, remains to be seen.