The Federal Court of Australia has decided that newspaper
headlines are not protected by copyright.
The Court dismissed a copyright claim by
Fairfax Media Publications Pty Ltd (Fairfax)
against Reed International Books Australia Pty Ltd
(Reed) for copying and distributing newspaper
headlines. The Court held that headlines are not substantial
enough to qualify for copyright protection.
The result follows the decision in IceTV v
Nine (click here to read
our previous article), in which the High Court of Australia held
that the reproduction of program times and title information from
Nine's electronic program guide did not constitute copyright
Fairfax is the publisher of the Australian
Financial Review (AFR).
Reed is the online publisher of LexisNexis
Australia and ABIX abstracting services. For many years, ABIX
has developed abstracts from Fairfax (including the AFR) and other
In February 2007, Fairfax notified LexisNexis
that the reproduction of AFR headlines was in breach of
Fairfax's copyright. In July 2007, Fairfax commenced
proceedings against LexisNexis, asserting that the use of the
headlines in ABIX, and not the articles themselves, amounted to
copyright infringement. Fairfax argued that the headlines
were "literary works" within the meaning of the
Copyright Act 1968 (Cth).
Rather than seeking damages, Fairfax
a declaration that the use of the headlines was improper; and
an injunction restraining further use of AFR headlines by ABIX.
The Court found that ABIX's use of ten
Fairfax headlines did not breach copyright laws.
Justice Bennett ruled that, on the one hand,
if headlines are deemed separate works to their articles, they are
simply "too insubstantial and too short to qualify for
copyright protection as literary works". On the other
hand, if headlines are considered to form part of the article and,
together, they constitute a copyright work, then the headline alone
"does not take substantial part of such a work".
Interestingly, the Court decided that, in the
circumstances of this case, the headlines and articles were
separate works from each other, as various authors had contributed
to each separately. However, this is not a blanket rule and
if the evidence supports the fact that author contribution is not
separate, then an article and headline may constitute a copyright
work of joint authorship. Unfortunately for Fairfax, this was
a moot point, as Justice Bennett held that there would be no
infringing conduct by ABIX in either circumstance.
What does this mean for content creators and
The Federal Court's ruling suggests that,
for the meantime, there is no way for a publisher to protect its
headlines under Australian copyright laws. This principle is
likely to extend beyond newspaper and magazine headlines to other
media types such as song and book titles.
While this decision may be appealed, it
follows a string of Australian court decisions that increasingly
protect redistributors of content. Creators of original content may
need to seek other avenues, such as trade mark registrations or
actions for misleading and deceptive conduct, to protect short
phrases such as headlines or titles.
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