The recent decision of the English Court of Appeal in Meltwater Holdings BV & Ors v Newspaper Licensing Agency & Ors [2011] EWCA Civ 890 indicates a more generous attitude by the British Courts towards the authors of newspaper headlines than has recently been the case in Australia.

Those who do business in the UK should be aware of the divergence between the UK and Australian positions.  In particular, when making use of parts of copyright works, such as headlines and other similar title information available on the Internet, clients should have regard to the fact that the UK courts will more readily find that copyright subsists in those short and simple works than would the courts in Australia.

The case involved the creation of various materials (such as email newsletters) by Meltwater, a media monitoring and analytics service. The materials included extracts from articles published in English newspapers, accompanied by the headlines of the original articles.

At first instance Justice Proudman found that copyright subsisted in the articles and the headlines and that the extracts and reproductions published by Meltwater to its clients constituted infringement.

The decision was appealed and a panel of three judges unanimously dismissed the appeal.

In his leading judgment, the Chancellor of the High Court rejected the arguments put by counsel for the appellants that copyright could not subsist in a headline. Referring to the relevant provisions of the Copyright, Designs and Patents Act 1988 (UK), his Honour considered the requirement that for copyright to subsist in a work it must be both literary and original.

His Honour found a headline "plainly literary as it consists of words." His Honour then turned to the issue of originality and adopted the test set out by the European Court in Infopaq International A/S v Danske Dagblades Forening [2009] ECDR 16 that the work must be the "intellectual creation" of the author.

His Honour upheld the finding of the trial judge that a substantial number of the headlines in question satisfied these two criteria and that copyright was infringed by their reproduction by Meltwater.

The decision stands in stark contrast to that of Bennett J of the Federal Court of Australia in Fairfax Media Publications Pty Ltd v Reed International Books Australia Pty Ltd [2010] FCA 984.

In the Fairfax Case, her Honour considered a selection of headlines from the Australian Financial Review in which Fairfax claimed copyright subsisted and which Reed had infringed by the publication of its ABIX service of headlines and article abstracts.  Whilst Bennett J acknowledged that it was possible that copyright could subsist in a headline, her Honour found that it was unlikely that this would be the case in most instances because a headline would not be considered literary, nor would it be original.

In considering the literary character of a headline, Bennett J found that headlines were generally "like titles, simply too insubstantial and too short to qualify for copyright protection as literary works." Her Honour referred to the English decision in Exxon Corporation v Exxon Insurance Consultants International Ltd [1982] Ch 119 and the finding that a word "was not a "literary" work because it was not intended to afford information and instruction or pleasure in the form of literary enjoyment." (Interestingly, the Chancellor of the Court of Appeal referred to this decision in the Meltwater case in a list of cases that supported the notion that copyright could subsist in a headline or title.)

On the question of originality, her Honour found similarly to the English Court of Appeal that novelty was not a requirement. Nevertheless, Bennett J considered that "it must involve more than mere authorship" (echoing the decision of Isaacs J in Sands & McDougall Proprietary Ltd v Robinson [1917] HCA 14).  Her Honour found no copyright in any of the headlines presented by Fairfax.

Meltwater and PRCA have announced that they intend to appeal aspects of the decision to the Supreme Court of the United Kingdom. It is as yet unclear whether the appeal will cover the issue of copyright in headlines.

The assistance of Michael Camilleri, Solicitor of Addisons in the preparation of this article is noted and greatly appreciated