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 infringement.

Background

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 media sources.

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 sought:

  1. a declaration that the use of the headlines was improper; and

  2. an injunction restraining further use of AFR headlines by ABIX.

Court's decision

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 redistributors?

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.

Sydney

Kym Livesley

t (02) 9931 4894

e klivesley@nsw.gadens.com.au

Alexia Marinos

t (02) 9931 4955

e amarinos@nsw.gadens.com.au

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