No copyright found in newspaper headlines - Fairfax Media Publications Pty Ltd (Fairfax) v Reed International Books Australia Pty Ltd

The position is clear — there is no copyright in newspaper headlines. This decision brings relief and clarity to the growing number of information providers who produce abstracts that replicate titles and headlines from original sources. Kate Hocking

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On 7 September 2010, in a landmark decision of the Federal Court in Fairfax Media Publications Pty Ltd v Reed International Books Australia Pty Ltd,[1] the Court held that there's no copyright in newspaper headlines.

The facts

Fairfax publishes the Australian Financial Review (AFR).

Reed, trading as' LexisNexis Australia', delivers a subscription service known as ABIX. ABIX is an electronic newsletter which summarises a variety of newspapers and magazine articles, including AFR articles. Each summary includes the article headline, a by-line and Reed's own synopsis of the article. The summary does not reproduce the advertisements, photographs or quotes used in the articles.

The claim

In July 2007, Fairfax sued Reed claiming it had infringed its copyright in 10 selected articles including their headlines. The claim involved 4 different types of copyright works contained in each edition of the AFR:

1. Each individual headline in an AFR edition.

2. Each article, including its headline and by-line, written by journalists employed by Fairfax and published in the AFR.

3. The compilation consisting of all of the articles, including their headlines and by-lines, in an AFR edition.

4. Each entire edition of the AFR.

The parties agreed that each edition of the AFR (including the articles, their headlines, and other material such as photographs and advertisements), were original literary works in which Fairfax held copyright.

At the end of the hearing, the decision in this case was reserved until after the publication of the High Court decision in Ice TV Pty ltd v Nine Network Australia Pty Ltd [2009] HCA 14 and the chance for additional submissions was made. This article sets out the final decision of the Federal Court.

What relief was Fairfax seeking against Reed?

Fairfax sought:

• a declaration that Reed had infringed its copyright in original literary works by providing its subscribers with abstracts of AFR articles; and
• an injunction restraining future infringement.

What was the outcome?

The application by Fairfax was dismissed.

The Court found that Reed had not infringed Fairfax's copyright in editions or compilations because:

1. Reed did not present the abstracts in the same order or arrangement as Fairfax;

2. Reed did not reproduce substantial parts of the works;

3. Headlines generally are, like titles, simply too insubstantial and too short to qualify for copyright protection as literary works;

4. Reed did not breach Fairfax's copyright in the entire edition of the AFR as it did not arrange the abstracts within the ABIX service in the same way it was presented in the AFR. Further, the headlines did not appear in the same order as they appeared in the AFR;

5. It was not in the public interest for the Court to confer copyright protection on headlines. If titles were subject to copyright protection, then conventional bibliographic references to a specific article would infringe copyright laws; and

6. It was not practical for the Court to find headlines as a discrete work of authorship in which copyright could subsist. Titles and headlines are commonly reproduced as an identification source in all forms of media.

Availability of defences

1. Fair Dealing: Reed successful

It was noted by the Court that if it was established that Reed had infringed Fairfax's copyright, then Reed could have relied upon the defence of 'fair dealing' under the Copyright Act 1968 (Cth) (Act). Under this defence, a fair dealing with a literary work does not constitute an infringement of copyright if it is for the purpose of reporting news in a newspaper, magazine or similar periodical and a sufficient acknowledgment of the work is made.

2. Estoppel: Reed unsuccessful

Reed pointed out that before Fairfax initiated legal action against Reed, Fairfax knew of ABIX and had subscribed to its service since July 2001. Reed relied on this as the basis of an estoppel argument which was rejected by the Court: Reed could not assume that because Fairfax had not asserted copyright infringement in the past, Fairfax would not do so in the future. Further there was no evidence to show that Reed had relied on this assumption to its detriment (which is a requirement of estoppel).

Can Fairfax appeal the Court's decision?

The time period for appeal of this decision by Fairfax has ended.

Joint authorship

Apart from commenting on when copyright does and does not subsist, the Court made some interesting observations of what does, and does not, constitute joint authorship.

Fairfax argued that the article/headline combination was a work of joint authorship. It was established that generally, a journalist prepared the article and Fairfax editors made some contributions including the headline. Clearly the author of the article and the author of the headline were 2 distinct people.

The article referenced the journalist as the author but did not refer to the editors involved in its preparation. For the article to constitute a joint authorship for the purposes of the Act, both authors had to be identified. The articles in the AFR were not works of joint authorship as they were a collaboration of two or more authors where the contribution of each author was separate from the contribution of the other author.

Implications

This decision has clarified the ability of information providers to create derivative services using others' work on the condition that:

• the original source is correctly cited; and
• the abstract does not reproduce a substantial part of the original work.

This decision should also be considered by those wishing to protect short commercial by-lines and slogans. Given that brevity is common to such 'literary works', it could be argued that the Court may take a similar view as to their copyright protection.

More information from Maddocks

If you have any questions about this article, or intellectual property generally, then please call the Maddocks Intellectual Property and Information Technology team in Melbourne on 03 9288 0555.

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[1] [2010] FCA 984.