10 September 2010
For the first time in Australia, a court has decided that there is no copyright in newspaper headlines, a decision that increases the scope for information providers to create derivative services based on others' work (Fairfax Media Publications Pty Ltd v Reed International Books Australia Pty Ltd  FCA 984).
What does Reed do with stories from the AFR?
Reed offers a service called ABIX. Subscribers receive abstracts of articles published in various newspapers and magazines, including articles in the Australian Financial Review, published by Fairfax. Usually, they get the original headline and the journalist's by-line, and a summary of the article written by one of Reed's employees. Around 40-60% of articles in each edition of the AFR will be abstracted in this manner.
It's important to note that ABIX only gives subscribers the headline and by-line as words - it doesn't reproduce the look and feel of the words on the AFR's page or digital service, and it doesn't include the photographs, advertisements, or other elements of the layout. That means that the argument is solely over the words.
The alleged copyright infringements
Fairfax claimed that each of the following are original literary works protected by copyright, and that Reed takes the whole or a substantial part of each of these works when it provides its ABIX abstracts:
Why isn't there copyright in the AFR headlines?
Copyright subsists in original literary works, and the headlines in the case weren't literary works. Justice Bennett said that "headlines generally are, like titles, simply too insubstantial and too short to qualify for copyright protection as literary works."
They act as a way of identifying the work (in this case, the article), and extending copyright to them would prevent others from even referring to the work without infringing copyright. That would clearly be untenable.
This doesn't mean that theoretically a headline or title couldn't ever rise to the level of being an original literary work, as Justice Bennett acknowledged. But it does mean that the vast majority of them will not be.
What about in the combination of headline, by-line and article?
If the headline by itself isn't a literary work, what about the headline in combination with the by-line and the article (which is a literary work)? If that's an original literary work protected by copyright, then Fairfax could argue that Reed's use of the headline by itself was use of a substantial part, and hence infringing.
The argument went like this:
This foundered on a simple lack of evidence - Fairfax offered no evidence about the actual authorship of the ten headlines it sued over. Instead, it said that the Court could infer from its usual processes of creating the content for the AFR.
If anything, said Justice Bennett, Fairfax's evidence showed that its usual process was to leave the headline to the sub-editor, making it a distinct and separate task for a distinct and separate author. That is the opposite of joint authorship, which happens when two or more authors collaborate and their contributions are not distinct and separate.
Even if the combination of headline, by-line and article were a literary work, the headline would not be a substantial part, because Justice Bennett found that they were not original. Without originality, the headlines cannot amount to a substantial part of the work.
But even if the material was protected by copyright, Reed would have a defence
Even if Reed had infringed Fairfax's copyright, it would have the defences of fair dealing available to it under the Copyright Act.
First, it would be able to argue that it was reproducing AFR headlines for the purpose of, or associated with, the reporting of news, as the abstracts are, in effect, news summaries.
Secondly, this reproduction is fair - it is not a substitute for reading the AFR, it acts as a citation to the original article, and the addition of a summary means that Reed has added something new and useful.
Fairfax knew about this for a long time - does that matter?
Reed pointed out that Fairfax has known about the ABIX service for a long time - indeed, it even subscribed to it.
This, it said, created an assumption that it will not, at any time in the future, assert copyright infringement in the reproduction of headlines in any future editions of the AFR, regardless of any changes in the way in which Fairfax or Reed conduct their respective businesses.
Reed said it had acted on that assumption, and had bought the business and invested in it in part because of that assumption. As a result, Fairfax was estopped from suing it now.
Justice Bennett said that there was no evidence that Fairfax had created that assumption, nor that Reed had relied upon it, let alone been injured by any reliance.
What does this mean for copyright owners?
This has been an issue for many years, particularly since the mid-1990s, when aggregators began reproducing headlines from online news services. This decision brings some clarity to the area.It also highlights the growing problem of identifying authorship. As we discovered in the Yellow Pages case, the failure to identify the authors of a work of mass of information was a serious problem, and was one reason why the Court found there was no copyright in that database. Here, Fairfax sued over ten headlines, but could not identify who had actually written them, an important first step in any copyright claim.