The recent decision of the English Court of Appeal in
Meltwater Holdings BV & Ors v Newspaper Licensing Agency
& Ors  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
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
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
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
 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
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 
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
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  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  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
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