The UK Court of Appeal has held that the unlicensed receipt and use of headlines or extracts of online news articles, communicated to users by media monitoring companies, will constitute an infringement of the article publisher's copyright (Newspaper Licensing Agency Ltd v Meltwater Holding BV  EWCA Civ 890).
The media monitoring service offered by Meltwater
Meltwater offers a media monitoring service to clients, including the Public Relations Consultants Association Ltd (PRCA). As part of this service, Meltwater monitors news websites using a "spider" computer program which "scrapes" or reads the contents of websites, identifying articles containing keywords that have been specified by clients.
Clients pay a fee for "Meltwater News", which comes to the client in the form of an email with a hyperlink to those articles containing keywords. Each email also included the relevant article's headline, an extract of the article showing the context in which keywords appear, and the article's opening words.
The NLA alleged that, as an end-user, PRCA had infringed its copyright by making copies of the publishers' online articles. This copying was alleged to have been done by the end-user's computer in two main ways:
when it copied Meltwater News when (i) the email was received; (ii) when the email was opened; and when the Meltwater website was accessed by clicking on the link to the article; and
when it copied the article itself when the end-user clicked on the link indicated by Meltwater News.
Each of Meltwater's websites had conditions permitting access to the website by end-users for personal and/or non commercial use. Meltwater's conduct was not in issue as it had agreed to enter into a Web Database Licence scheme with the Newspaper Licensing Agency.
Headlines as original literary works
The Court rejected PRCA's submission that in all but exceptional cases, headlines are not capable of being literary works separate from the works of which they are the headline. The Court reiterated that the starting point was to establish whether a headline is "a work" and both "original" and "literary". The Court agreed that a headline was plainly literary, and to be original, it must originate with the author.
The Court held that headlines are capable of being literary works, whether independently or as part of the articles to which they relate. It found that if the headline is totally distinct from the article, through being independently and separately produced by a different person, it could constitute an independent literary work. The headline will otherwise form part of the article.
Extracts as a substantial part of an original literary work
The Court also considered whether extracts, together with a headline (if not an independent literary work) would constitute a substantial part of the article on the Publisher's website.
The Court rejected the PRCA's submission that an extract would be too short and factual to give any sense of the author's intellectual creation, and found it inevitable that some extracts would constitute a substantial part of the original work so as to, when copied by an end-user, amount to infringement.
The Court agreed with the first instance decision that "a mere 11 word extract may now be sufficient in quantity provided it includes an expression of the intellectual creation of the author".
The Court rejected the "temporary copy" defence in section 28A of the Copyright, Designs and Patents Act 1988 (UK), under which copyright is not infringed in some circumstances when copies made are transient or incidental, and are an integral and essential part of a technological process. Section 111B of Australia's Copyright Act 1968 (Cth) contains similar terms.
In the Court's view the acts of reproduction were not part of a technological process, but were the end the process was designed to achieve, "occasioned by the voluntary human process of accessing that webpage".
Relevance in Australia?
A similar issue has arisen in Australia in a case that was considered by the UK Court of Appeal in this case.
In Fairfax Media Publications v Reed International Books Australia, the question was whether Reed's reproduction of headlines in the Australian Financial Review infringed the publisher Fairfax's copyright.
Justice Bennett of the Federal Court did not find that copyright subsisted in the headline in question, and said that "headlines generally are, like titles, simply too insubstantial and too short to qualify for copyright protection as literary works." There is also a practical problem with recognising copyright in headlines – since they act as a way of identifying the work, extending copyright to them would prevent others from even referring to the work without infringing copyright.
She did however recognise the possibility that "evidence directed to a particular headline, or a title of so extensive and of such a significant character, could be sufficient to warrant a finding of copyright protection".
That means that, until an appellate court has considered the issue, the question in Australia of whether copyright subsists in a headline will come down to a careful analysis of how it was created, and whether it rises to the level of being a "literary work" for the purposes of the Copyright Act .
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