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 licence.
Background
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 works; and
- 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 originality.
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 work.
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.
Conclusion
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 copyright protection.
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