When the Federal Court handed down its much-anticipated decision on copyright in newspaper headlines (Fairfax Media Publications Pty Ltd v Reed International Books Australia Pty Ltd) in September, the finding was in line with long-accepted principles that discrete items like titles, names and slogans are generally not substantial or original enough to be protected by copyright.

The case involved allegations by Fairfax Media that Reed International had infringed its copyright in the Australian Financial Review (AFR). Reed had reproduced elements of AFR articles in its ABIX service, which essentially provides subscribers with abstracts of already published articles, together with the (often unaltered) headlines and by-lines of these articles.

It was a particularly significant case given the concerted effort by publishing companies worldwide to try to protect the value of their content in the new online environment.

A key issue was whether copyright subsisted in the headlines of the AFR articles as discrete literary works. In addition, Fairfax argued that each of the following was capable of separate copyright protection, being a work of joint authorship:

- The combination of each article, together with its headline and by-line;

- The compilation of articles in the particular edition of the newspaper including headlines, but excluding other material such as photos, advertisements and market tables; and

- The entire AFR edition work, including photos, advertisements and market tables.

Headlines

In consideration of whether copyright subsists in headlines alone, Justice Bennett noted that while the creation of headlines might involve effort and skill, “headlines generally are, like titles, simply too insubstantial and too short to qualify for copyright protection as literary works”[1]. This question has not been previously been addressed by an Australian court, however Justice Bennett’s finding is a continuation of long-established principles that items such as titles and names alone will not normally be afforded separate copyright protection.

Authorship

The Court also looked at issues of authorship, making substantial reference to the decision in IceTV[2].

Justice Bennett said: “Authorship is crucial for establishing copyright because it is essential to prove that the work originated from an author who expended independent intellectual effort to create the expression in the work”. However she added that where evidence was established of a work of joint authorship, it was not essential for copyright purposes to name every individual author, provided that some authors could be identified as employees with specific roles, and that the skill and labour in relation those specific roles could also be identified. Therefore, it was not necessary for Fairfax to identify every individual involved in authorship of the works.

Article-headline-byline

Fairfax argued that the combination of an article, a headline and a by-line was a work of joint authorship. But the Court found that the contribution of the journalists writing the body of the articles was separate to the contribution of the sub-editors, who edited the articles and wrote the headlines.

Therefore, the Court held that the headline/by-line and article combination was not a distinct work of joint authorship.

Compilation of articles and the edition work

The Court was satisfied that the compilation of articles as well as the edition works were capable of being protected as works of joint authorship, having been produced through the collaboration of a number of authors whose contribution was not separate from the contribution of the others. On the issue of identifying the authors, Justice Bennett noted that it was sufficient for Fairfax to establish which particular employees by role had contributed, as opposed to the specific identity of these employees.

Despite finding that “copyright subsists in the Article Compilation and the Edition Work as original literary works”, there was no finding of infringement because what was protected in this instance was the particular selection, arrangement and layout of materials, whereas the ABIX service did not reproduce such aspects of the AFR works.

Read the full case at:

http://www.austlii.edu.au/au/cases/cth/FCA/2010/984.html

[1] Fairfax Media Publications Pty Ltd v Reed International Books Australia Pty Ltd [2010] FCA 984, at 80.

[2] IceTV Pty Ltd v Nine Network Australia Pty Ltd [2009] HCA 14; (2009) 239 CLR 458