In Fairfax Media Publications Pty Ltd v Reed International Books Australia Pty Limited  FCA 984, the Federal Court held that newspaper headlines are not substantial enough to qualify for copyright protection and that even if they are, their reproduction by news aggregating services, including where the reproduction is part of a commercial enterprise in competition with the original publisher, would be protected under the defence of fair dealing. The case is the first time that the question of whether copyright subsists in a newspaper headline has been decided by an Australian court.
- Clients should be reminded that copyright will not subsist in works which are very short.
- News aggregating services and other content redistributors will be able to continue using the headlines of articles published in newspapers and magazines to provide abstracts of those articles to their subscribers without having to obtain the consent of the original publishers or pay a licence fee to them for the right to do this.
- There is a long line of authority which holds that as with newspaper headlines, copyright does not subsist in short works, such as titles(1), advertising slogans(2) and short phrases(3).
- Whereas it was possible for the authors of short works such as titles and advertising slogans, in the absence of copyright protection, to rely on trade mark registration, the tort of passing off or a claim for misleading and deceptive conduct to protect against unauthorised use (4), these measures are not available or effective in the case of newspaper or magazine headlines. Without copyright protection, it is difficult to see how newspaper and magazine publishers would be able to control access to and reproduction of their content online.
They may be creative, original and clever, and involve a lot of effort and thought, but in the recent decision of Fairfax Media Publications Pty Ltd v Reed International Books Australia Pty Limited  FCA 984, the Federal Court of Australia has ruled that newspaper headlines do not, as a class, enjoy copyright protection.
The case involved copyright proceedings brought by Fairfax Media Publications Pty Ltd (Fairfax) against Reed International Books Australia Pty Limited (Reed) and concerned Reed's conduct in reproducing newspaper article headlines from Fairfax's Australian Financial Review (AFR) in its ABIX news service (ABIX Service). The ABIX Service provides Reed's subscribers with daily abstracts of news reports and articles published in various newspapers and magazines, including articles in the AFR. Each abstract contains the (unchanged) headline of the original article, the by-line of the journalist who wrote the article, and a short summary of the article written by an employee of Reed.
In the proceedings, Fairfax sought a declaration from the court that the verbatim reproduction of its AFR headlines by Reed in the ABIX Service infringed its copyright and sought an injunction to restrain Reed from engaging in future infringement.
As approximately 50 per cent of the articles in each edition of the AFR are provided as part of the ABIX Service, it is likely that at least some subscribers of the ABIX Service use the ABIX Service as a substitute for subscribing to or reviewing the AFR. In the new age of digital media, newspaper publishers rely heavily on revenue generated from subscriptions and traffic to its online editions and Fairfax's concerns that the ABIX Service removes the need for the public to subscribe to or review the AFR are understandable(5). It is an indication of the emerging importance of the digital media format that, although AFR headlines have been reproduced in the ABIX Service since its launch in 1981, it was not until the filing of this case in 2007 that Fairfax had alleged that the provision of the ABIX Service infringed its copyright.
Fairfax argued that Reed took the whole or a substantial part of each of the following works in which it asserted copyright subsisted:
- Each individual newspaper headline in an AFR edition;
- Each article, including its headline and by-line, in an AFR edition (Article/Headline Combination);
- The compilation of all articles, including their headlines and by-lines, in an AFR edition (excluding other material such as photographs, advertisements, tables) (Article Compilation); and
- The compilation of each entire AFR edition (Edition Work).
Ultimately, Fairfax failed to prove copyright infringement of any of these 4 works.
Does copyright subsist in newspaper headlines?
Fairfax based its case on a selection of ten sample individual headlines from previous editions of the AFR, each of which it argued was an original literary work in which copyright subsisted. Included amongst these sample headlines was "Fund managers reject Telstra chief's $11m pay deal"(6) and "October a brilliant stage in dollar's tour de force" (7).
It claimed that the headlines, which were written by AFR's sub-editors, involved "creativity, thought, application, effort and experience" and played a significant role as a literary work as they were used to attract readers to the articles.
Whilst Justice Bennett accepted that headlines were sometimes clever and evoked admiration and attracted attention, Her Honour held that copyright did not subsist in headlines, as a class, because they were too insubstantial and too short to qualify for copyright protection as literary works and, also, because they did not have the required level of originality.
According to Her Honour, the function of the headline is as a title to the article and that because of this, affording published headlines copyright protection would tip the balance too far against the interest of the public to be free to refer to articles by their headlines. In this way, Her Honour legitimised Reed's practice of reproducing the AFR headlines in the ABIX Service as a means of identifying and providing a reference to the AFR articles.
In relation to originality, Her Honour considered that the majority of the sample headlines were simply short factual statements of the subject of the article to which they related and in some cases, represented no more than the fact or idea conveyed. Her Honour did not accept that the skill and effort which went into the production of the sample headlines was sufficient to establish originality in the headlines and warrant a finding of copyright protection.
In reaching this finding, Her Honour drew a comparison between newspaper headlines and titles of other publications such as books and movies and advertising slogans, which have previously been held to be too trivial to attract copyright protection. While Her Honour was careful not to exclude the possibility that some headlines could be so extensive and of such significant character so as to attract copyright protection, she did not describe any specific criteria that would need to be met by headlines in order to qualify for protection.
Does copyright subsist in the Article/Headline Combination?
In relation to these works, Fairfax argued that its copyright in the Article/Headline Combinations, which it claimed constituted a work of joint authorship, was infringed by Reed because a substantial part, being the headline, was reproduced by Reed in the provision of the ABIX Service.
This argument was rejected by Justice Bennett who held that the Article/Headline Combination was not a discrete work in which copyright subsisted because the contribution of the journalist (who writes the article) and the sub-editor (who edits the article and writes the headline) were separate from one another. In reaching this conclusion, Her Honour cited the High Court decision in IceTV Pty Limited v Nine Network Australia Pty Limited(8) as authority on the issue of joint authorship and relied on the fact that the journalist made no contribution to the preparation of the headline and that the by-line of the articles credited only the journalist's name and not the sub-editor's as the author.
Even if Her Honour was incorrect on this point and the Article/Headline Combination was a separate copyright work, Her Honour found there would be no copyright infringement by Reed as the headline was not a substantial part of the work.
Does copyright subsist in the Article Compilation and Edition Work?
Justice Bennett found that both the Article Compilation and Edition Work were works of joint authorship in which copyright subsisted. In both these cases, Her Honour considered that the originality and relevant skill and labour resided in the gathering, selecting, coordinating and arranging of the articles and headlines comprising the compilation, rather than the content itself.
Because of this, the taking of headlines from these works, without taking the form or arrangement in which they appeared in the Article Compilation or Edition Work, did not constitute a reproduction of a substantial part of either of the works. As such, Reed's conduct in reproducing the headlines in the ABIX Service did not infringe Fairfax's copyright in these works.
Defences of fair dealing and equitable estoppel
Even if Reed had been found to have infringed Fairfax's copyright in any of the 4 works, Justice Bennett would have accepted Reed's defence that the reproduction of headlines from the AFR was for the purposes of reporting the news which constitutes fair dealing for the purposes of section 42 of the Copyright Act(9). Her Honour considered that it was irrelevant to the defence that Reed's activities in using the headlines were commercial in nature.
Reed also raised the defence of equitable estoppel in which it argued that Fairfax was estopped from asserting copyright infringement in the AFR headlines as it had been aware of and failed to take steps to prevent Reed from reproducing headlines from the AFR for over 10 years and had created an assumption relied upon by Reed that it would not assert copyright infringement in the AFR headlines in the future. Her Honour rejected this argument.
Ultimately, Fairfax's claim of copyright infringement was comprehensively denied. At the first hurdle, Fairfax failed to prove copyright infringement of any of the 4 works that it asserted copyright in and at the second hurdle, it failed to refute Reed's defence of fair dealing.
Given that news aggregation services such as Reed's ABIX Service rely to a large extent on the ability of headlines to tell the story of the articles and engage their readers, there is some irony in the finding that those very headlines are too insubstantial and trivial to deserve copyright protection.
Perhaps part of Fairfax's failure to succeed in the case can be attributed to the type of headlines which Fairfax had chosen to adduce as the sample headlines in its evidence. Had Fairfax chosen headlines which were more weighty, creative and witty than "Investors warned on super changes"(10) or "Health gaffes put coalition on back foot"(11)(12), Fairfax may have been able to test Justice Bennett's finding that some headlines could be so extensive and of such significant character so as to justify copyright protection.
Note: Reed International Books Australia Pty Limited publishes the LexisNexis Intellectual Property Bulletin
1 Francis Day & Hunter Ltd v Twentieth Century Fox Corp Ltd  AC 112 (for song titles); Rose v Information Services Ltd  FSR 254 and Dick v Yates (1881) 18 Ch D 76 (for book titles); Green v Broadcasting Corp of New Zealand (1988) 16IPR 1 (for TV series titles)
2 Sinanide v La Maison Kosmeo (1928) 139 LT 365; Kirk v Fleming [1928-35] MacG Cop Cas 44
3 Alberto Culver v Andrea Dumon  USCA7 202; Salinger v Random House Inc  USCA2 415); CMM Cable Rep Inc v Ocean Coast Props Inc  USCA1 473
4 See E Janus, "Entitled to protection? Names of creative works as trade marks in Australia" (2009) 22(5) IPLB 74.
5 As an example of the reliance of newspaper publishers on revenue generated from their online editions, the New York Times will commence charging users to access its website from early 2011.
6 From Australian Financial Review, 1 November 2007, pg 1.
7 From Australian Financial Review, 1 November 2007, pg 27.
8. IceTV Pty Limited v Nine Network Australia Pty Limited  HCA 14
9. Copyright Act 1968 (Cth)
10 From Australian Financial Review, 27 June 2007, pg 1.
11 From Australian Financial Review, 1 November 2007, pg 1.
12 Fairfax could have even sourced the headlines from its other major publications (such as The Sydney Morning Herald and The Age), articles from which are also abstracted by Reed in the ABIX Service.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.