Australia: Copyright makes headlines in the UK

Last Updated: 17 August 2011
Article by Mary Still

The UK Court of Appeal has held that the unlicensed receipt and use of headlines or extracts of online news articles, communicated to users by media monitoring companies, will constitute an infringement of the article publisher's copyright (Newspaper Licensing Agency Ltd v Meltwater Holding BV [2011] EWCA Civ 890).

The media monitoring service offered by Meltwater

Meltwater offers a media monitoring service to clients, including the Public Relations Consultants Association Ltd (PRCA). As part of this service, Meltwater monitors news websites using a "spider" computer program which "scrapes" or reads the contents of websites, identifying articles containing keywords that have been specified by clients.

Clients pay a fee for "Meltwater News", which comes to the client in the form of an email with a hyperlink to those articles containing keywords. Each email also included the relevant article's headline, an extract of the article showing the context in which keywords appear, and the article's opening words.

The NLA alleged that, as an end-user, PRCA had infringed its copyright by making copies of the publishers' online articles. This copying was alleged to have been done by the end-user's computer in two main ways:

  • when it copied Meltwater News when (i) the email was received; (ii) when the email was opened; and when the Meltwater website was accessed by clicking on the link to the article; and
  • when it copied the article itself when the end-user clicked on the link indicated by Meltwater News.

Each of Meltwater's websites had conditions permitting access to the website by end-users for personal and/or non commercial use. Meltwater's conduct was not in issue as it had agreed to enter into a Web Database Licence scheme with the Newspaper Licensing Agency.

Headlines as original literary works

The Court rejected PRCA's submission that in all but exceptional cases, headlines are not capable of being literary works separate from the works of which they are the headline. The Court reiterated that the starting point was to establish whether a headline is "a work" and both "original" and "literary". The Court agreed that a headline was plainly literary, and to be original, it must originate with the author.

The Court held that headlines are capable of being literary works, whether independently or as part of the articles to which they relate. It found that if the headline is totally distinct from the article, through being independently and separately produced by a different person, it could constitute an independent literary work. The headline will otherwise form part of the article.

Extracts as a substantial part of an original literary work

The Court also considered whether extracts, together with a headline (if not an independent literary work) would constitute a substantial part of the article on the Publisher's website.

The Court rejected the PRCA's submission that an extract would be too short and factual to give any sense of the author's intellectual creation, and found it inevitable that some extracts would constitute a substantial part of the original work so as to, when copied by an end-user, amount to infringement.

The Court agreed with the first instance decision that "a mere 11 word extract may now be sufficient in quantity provided it includes an expression of the intellectual creation of the author".

Temporary copies

The Court rejected the "temporary copy" defence in section 28A of the Copyright, Designs and Patents Act 1988 (UK), under which copyright is not infringed in some circumstances when copies made are transient or incidental, and are an integral and essential part of a technological process. Section 111B of Australia's Copyright Act 1968 (Cth) contains similar terms.

In the Court's view the acts of reproduction were not part of a technological process, but were the end the process was designed to achieve, "occasioned by the voluntary human process of accessing that webpage".

Relevance in Australia?

A similar issue has arisen in Australia in a case that was considered by the UK Court of Appeal in this case.

In Fairfax Media Publications v Reed International Books Australia, the question was whether Reed's reproduction of headlines in the Australian Financial Review infringed the publisher Fairfax's copyright.

Justice Bennett of the Federal Court did not find that copyright subsisted in the headline in question, and said that "headlines generally are, like titles, simply too insubstantial and too short to qualify for copyright protection as literary works." There is also a practical problem with recognising copyright in headlines – since they act as a way of identifying the work, extending copyright to them would prevent others from even referring to the work without infringing copyright.

She did however recognise the possibility that "evidence directed to a particular headline, or a title of so extensive and of such a significant character, could be sufficient to warrant a finding of copyright protection".

That means that, until an appellate court has considered the issue, the question in Australia of whether copyright subsists in a headline will come down to a careful analysis of how it was created, and whether it rises to the level of being a "literary work" for the purposes of the Copyright Act.

You might also be interested in ...

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.