The Federal Court of Australia today decided that copyright did not subsist in newspaper headlines. See Fairfax Media Publications Pty Ltd v. Reed International Books Australia Pty Ltd  FCA 984. This is the first time anywhere in the world that a common law court has fully considered and decided this issue.
Fairfax is an Australian publisher of newspapers, including the market-leading Australian Financial Review (AFR).
LexisNexis Australia publishes the ABIX abstracting service, which provides daily abstracts of over 70 Australian sources, including the AFR.
ABIX has been abstracting the AFR and other Fairfax and non-Fairfax sources since its founding in the early 1980s. Originally the abstracts were in the form of hard-copy bulletins and, more recently, an online database email newsletters accessed by and sent to ABIX subscribers.
In February 2007, Fairfax wrote to LexisNexis alleging that the reproduction of AFR headlines in ABIX (and the communication of those headlines to ABIX subscribers) infringed Fairfax’s copyright. In July 2007, Fairfax sued LexisNexis for copyright infringement. Fairfax asserted copyright in its newspaper headlines and claimed that LexisNexis’ use of those headlines in ABIX abstracts was an infringement of its copyright. The lawsuit did not claim that the abstracts infringed the copyright of the articles themselves.
Fairfax did not seek damages from LexisNexis, but rather sought a declaration that LexisNexis’ use of the headlines is improper and injunctions restraining further use of AFR headlines in ABIX. Although headlines from a number of other prominent Fairfax publications (including the Sydney Morning Herald and The Age) are reproduced in ABIX, the current litigation concerned the reproduction of headlines from the AFR only.
The trial took place in September 2008 before Justice Bennett. After trial, the High Court of Australia delivered its decision in IceTV Pty Ltd v. Nine Network Australia Pty Ltd (2009) 239 CLR 458, and the Court asked the parties for additional submissions in July 2009 to address any relevant issues raised in the IceTV judgment. (Justice Bennett was also the trial judge in IceTV.)
Fairfax asserted in the alternative that:
each headline is a copyright work in its own right;
a newspaper article with the headline is a copyright work, and by copying the headline, LexisNexis is taking a substantial part of that work;
all headline/article combinations in each newspaper edition were a compilation work; and
the newspaper as a whole is a work, and the headlines copied by LexisNexis are a substantial part of the newspaper.
Fairfax ran its case using 10 representative headlines from two separate editions of the AFR.
LexisNexis defended the claim on the bases that:
copyright does not subsist in headlines;
any copyright which Fairfax might have owned in newspaper articles or the newspaper as a whole is not infringed by the mere reproduction of headlines;
LexisNexis’ conduct attracted the defence under the Copyright Act of fair dealing for the reporting of news, which requires a citation to the original source; and
Fairfax’s claim was barred by an estoppel arising from the use of AFR headlines in ABIX for around 20 years.
Despite the skill and labour involved in writing headlines, the Court decided that none of the ten headlines selected by Fairfax are capable of being literary works in which copyright can subsist. “Headlines generally are, like titles, simply too insubstantial and too short to qualify for copyright protection as literary works.”
The Court noted that the headline is meta-information about the work (the article itself), not part of the work. “The need to identify a work by its name is a reason for the exclusion of titles from copyright protection in the public interest. A proper citation of a newspaper article requires not only reference to the name of the newspaper, but also reproduction of the headline.”
Fairfax also failed to prove that any of the ten representative headline/article combinations were a discrete work of joint authorship in which copyright can subsist, because “the writing of articles and the writing of headlines are separate and distinct tasks with different authors”.
The Court found that Fairfax owned copyright in the newspaper as a whole and the compilation of headline/article combinations from each edition of the newspaper. However, in using headlines, LexisNexis does not take a substantial part of these works.
In effect, the Court found that Fairfax could not obtain copyright protection in headlines via the backdoor by focusing on the newspaper as a whole. “Fairfax cannot, by relying upon the AFR as a compilation, obtain any greater protection for an element of the compilation apart from the compilation.”
The Court also decided that LexisNexis could rely upon a defence in the Copyright Act of fair dealing for the reporting of news. The Court recognised that LexisNexis invested a significant amount of skill, labour and effort in preparation of its abstracts, and the use of a headline as a proper citation to the newspaper article had to be considered in this context.
“The use of titles of articles and books for the purpose of identification is well-known and routine, even more so today for the purposes of internet searches. For example, Google search frequently elicits what could be described as a headline of the article.”
The Court decided that Fairfax’s claim was not barred by an equitable estoppel.
Businesses that abstract and summarise the works of others will be able to continue to use the title or headline of the original source when citing the original source.
Mallesons Stephen Jaques represented LexisNexis in this litigation.