Most Read Contributor in Australia, September 2016
The UK Court of Appeal has upheld the UK High Court's ruling
(see our article 'UK High Court finds copyright in
headlines' dated 15 December 2010), to confirm that
copyright will subsist in some newspaper headlines. The Court of
Appeal also upheld the finding in the High Court that both digital
news monitors who reproduce newspaper headlines as well as their
commercial subscribers can legally be required to pay for a
In November last year, digital news monitor Meltwater and its
subscriber Public Relations Consultants Association Limited
(PRCA) lost their case against Newspaper Licensing
Agency's (NLA) imposition of fees for
Meltwater's publication and PRCA's use of newspaper
headlines and extracts. Justice Proudman found that the NLA was
entitled to require a licence from both Meltwater and commercial
end-users like PRCA after holding that:
the headlines (independently of the article) and extracts
reproduced by Meltwater were capable of being protected literary
copies of those protected works were made on the end-user's
computer when the end-user accessed Meltwater's services.
Copyright in newspaper headlines
The UK Court of Appeal and High Court findings are in contrast
to the recent decision in Australia (see our article 'Newspaper
fails to prove copyright infringement by news service' dated 28
October 2010) where the Federal Court of Australia held that
headlines from the Australian Financial Review did not qualify for
copyright protection, as they lacked the requisite degree of
The UK High Court was largely persuaded by evidence that
"...headlines involve considerable skill in devising and they
are specifically designed to entice by informing the reader of the
content of the article in an entertaining manner."
In upholding the High Court's decision, the Court of Appeal
relied on the "clearly established" principle that the
requirement for originality is not a requirement for novelty, but
rather a requirement that the work originated with the author. The
Court of Appeal also referenced various cases, where it was
recognised that a headline or title may enjoy copyright protection,
to support the High Court's findings. However, it did amend the
High Court's declarations slightly to acknowledge the limited
circumstances where neither the headline nor the extracts
constituted a copyright work or a substantial part of a copyright
Licence required of end-users
The UK Court of Appeal also upheld the High Court's findings
that commercial end-users who receive the Meltwater service require
a licence in order to lawfully access and use newspaper headlines
and extracts. The appeal court rejected PRCA's claim that
requiring both Meltwater and its end-users to obtain a licence for
the use of newspaper headlines and extracts would be
"double-licensing". It held that the licence granted to
Meltwater by NLA did not extend to authorising its end-users to
download copies of the copyright material on their computers, and
in fact specifically provided that each client of Meltwater must
also obtain an end-user licence.
The UK Court of Appeal also agreed that the applicants could not
rely on any fair use defence as Meltwater's services were
tailored to particular end-users for commercial purposes, rather
than intended for public consumption.
Watch this space
As a result of the Court of Appeal's ruling, PRCA will seek
permission to appeal the finding against commercial end-users to
the UK Supreme Court. A decision on this issue is also pending from
a September hearing in the UK's Copyright Tribunal.
While it remains to be seen whether the UK position will be
adopted in Australia, entities which reproduce newspaper headlines
for commercial purposes should be careful to consider whether the
headlines may have sufficient originality or character to attract
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.
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