By Mary Anne Reid & Fiona James

The Federal Court’s recent decision on copyright in headlines (Fairfax Media Publications v Reed International Books Australia) is unlikely to be the last word on news aggregation and copyright. This month’s feature article compares Australia’s experience with developments elsewhere.

It is no surprise that traditional news outlets have clashed with the news aggregators flourishing on the Internet. Corporations like News Ltd, Associated Press and Fairfax pay their staff to produce original news stories and pictures, or pay other creators for the use of their work. News aggregators use digital technology to search (‘crawl’), reproduce and index fragments of news produced by others – often without payment to the owners of the original work, often without adding original content, and often generating income for themselves in the process.

In the news aggregator’s worldview, this should be considered ‘fair dealing’ (or ‘fair use’ depending on your country of origin) for the purposes of reporting the news. In the view of some news outlets, the aggregator is unjustly profiting from the work of others.

From a business perspective, the content owner’s point of view is likely to depend on whether they see the news aggregator as providing a welcome source of promotion for their news outlet, or a substitute for their original work. The reality may well be combination of both, yet that may still disturb businesses whose costly content is generating income for others without payment.

The potency of this issue at a time when news publishers around the world are struggling to monetise their content online created significant interest in the recent case brought by Fairfax Media Publications against Reed International Books Australia (trading as LexisNexis). Reed had indexed articles from the Australian Financial Review (AFR) in its news aggregation service ABIX, which essentially provides paying subscribers with abstracts of published articles, together with the (often unaltered) headlines and by-lines of these articles.

Fairfax alleged that Reed had infringed its copyright in the AFR. One of the key issues addressed – for the first time in an Australian court – was whether copyright subsisted in the news headlines in question. In September 2010, the Federal Court’s Justice Bennett found that no copyright subsisted in the headlines reproduced by ABIX and that even if it did, ABIX’s use of the work amounted to fair dealing under Australian copyright law.

It is doubtful, though, that we have heard the last word on news aggregation and copyright. International experience, and the extensive business interests at stake, suggests the Fairfax case may be the first round only.

Google and the wire services

The Google service Google News has been at issue in several high profile cases on copyright infringement and news aggregation.

One of these actions was brought against Google by the wire service Agence France Presse (AFP), in the United States in 2005. As wire services generally license their content to other news outlets rather than publishing on their own sites, AFP asserted that the headline, ‘lede’ (lead) and photo displayed by Google News was licensed content and only those who had paid licensing fees to AFP were authorised to publish them. “By providing this content, even in an abbreviated form, AFP claimed, Google News was infringing their copyrights and stealing their product.”[1]

The legal action continued for almost two years until the matter was concluded out of court in 2007, with Google signing a licensing agreement with AFP for the right to post AFP content on Google News and other Google services.

While the AFP proceedings were in progress, Google moved to stop another potential suit by entering into a similar licensing agreement with the wire service Associated Press (AP) in 2006. In commenting on the two agreements Google maintained its position that Google News was fully consistent with fair use. Rather, it said, the purpose of the licensing deals was to allow for new uses of AP and AFP news content by Google.

Copiepresse

In Europe, Google was involved in another legal action over its Google News service and this time the matter was settled in court.

The association of Belgian newspaper publishers, Copiepresse, commenced court proceedings against Google in 2006, asserting that Google News went beyond a simple search engine service and acted as a “portal to the written press”. [2] Copiepress objected to the display on Google News of the titles and first sentence or two of its members’ newspaper articles, as well as the provision of links to ‘cached’ versions of the articles (HTML text copies of articles stored by Google). Importantly, Copiepress did not object to the provision of hyperlinks to its members’ sites.

• Original expression: Google argued that the fragments displayed on Google News were not original elements qualifying for copyright protection. The court found that some of the headlines were original enough to warrant copyright protection, while others were not.

• News reporting exception: Google argued that in any event it could rely on Belgium’s exceptions to copyright infringement for news reporting. The court found that as Google provided no commentary on the news, the exception did not apply because reproduction could not be the principal object, rather than the secondary, in news reporting. [3]

• Implied licence: Google argued that the newspapers had explicitly or implicitly consented to the use of their materials by not using technical means (robots.txt files and metatags) to stop their publications being indexed by search engines. The court rejected this argument on the grounds that copyright is a right to prior authorisation, not a right to opt out of a particular use.

In 2007 the court ruled that Google had violated Belgian copyright laws and ordered the corporation to pay a daily fine until it removed the Belgian news content (which it did). Copiepress also sought damages for the infringements.

Writing on the ruling in Lexology, Graham Smith (Bird & Bird) stated [4]: “This decision…illustrates the difficulties that face search engines as they develop and extend their activities into areas beyond general purpose search. These challenges are especially pronounced in European countries, which unlike the USA generally lack a flexible doctrine of fair use of copyright works. Instead, the norm in Europe is a series of narrowly crafted exceptions which often do not read well on to technological advances.”

Online Media Monitors

Web ‘crawling’ (or using search engine technology to monitor and index online content) may only become an issue for content creators when the aggregator is selling the indexed information to subscribers. This is the scenario behind an important action currently being fought in two separate courts in the UK: the dispute between Meltwater Holding BV (Meltwater) and the Newspaper Licensing Agency (NLA).

Meltwater is a large public relations group offering UK businesses a paid-for online media monitoring service called Meltwater News. This service searches online news sites to generate media monitoring reports for its customers, including the headlines of relevant articles, the first few words of the article and the ‘hit sentence’, which is a small number of words around the word or phrase being monitored. [5]

The NLA is a copyright collecting society acting on behalf of the majority of the UK’s national newspapers. In January 2009, the NLA announced it would introduce licences to cover paid-for online media monitoring services such as those offered by Meltwater. Under the two new licences, the NLA required payment from media monitoring services crawling its content, as well as payment from the end-users receiving the service.

In essence, the NLA was seeking to extend to the web the principles under which it charges media monitors for photocopying paper news clippings for clients.

Meltwater raised a number of objections to both new licences but particularly to the Web End User Licence, and referred the matter to the UK Copyright Tribunal. Despite a request from the NLA to dismiss it, the Copyright Tribunal decided early in 2010 that it would hear the case and nominated February 2011 as the earliest date convenient to all parties. In a counter-move, the NLA started its own action in the High Court, reportedly seeking a quicker ruling than would be provided by the Copyright Tribunal. The first High Court hearing is due for November 2010. [6]

According to the Copyright Tribunal’s decision on jurisdiction [7], Meltwater asserts that a number of the terms of the licence to crawl the media content are unreasonable, including the financial terms and the requirement to pass on to the NLA the identity of all its customers. An interesting complexity in the case is that, according to Meltwater, the NLA is in the process of commencing its own paid-for online media monitoring service. “So the [Web Database Licence] appears to require Meltwater to give to a potential competitor the names of all its customers.” [8]

In regard to the Web End User Licence, “Meltwater contends that even if the monitoring reports are copies of substantial parts of the literary works in question…the use and receipt of such reports [by the client] does not infringe copyright and so the customers need no licence.” [9]

It is this requirement for the end-user to pay that has caused the most controversy over the licences, with some UK news aggregators describing the requirement as a ‘link tax’.

In a recent online interview, Meltwater CEO Jorn Lyseggen suggested that the two legal cases would probably run in parallel: “If the High Court should rule that there is no reason for our clients to pay the NLA, I think that will end it. But, if they conclude there should be a licence, the Copyright Tribunal would then actually set the licence fees.”

“There might be appeals up to the point where we have a final ruling. But once we have a final ruling, I expect that all parties will comply.” [10]

Does size really matter?

Even in the US, with its relatively wide fair use provisions, the substantiality of the portion of copyright-protected work used may be the basis for a court deciding that the use is infringing, rather than fair. In her article on The Rise of the News Aggregator, Kimberley Isbell makes the following observation about the use of headlines and leads by news aggregators [6]:

“The [US] Supreme Court, as well as a number of lower courts, has found that the reproduction of even a short excerpt can weigh against a finding of fair use if the excerpt reproduces the ‘heart’ of the work…In some instances, the first few sentences may contain the heart of the work. In other instances, this will not be the case.”

So does size really matter or is it skill and effort that counts? Australia’s Fairfax v Reed case was interesting for its focus on this question.

In determining whether the AFR headlines reproduced in Reed’s ABIX subscription service were discrete literary works, Justice Bennett concluded: “Headlines generally are, like titles, simply too insubstantial and too short to qualify for copyright protection as literary works. The function of the headline is as a title to the article as well as a brief statement of its subject, in a compressed form comparable in length to a book title or the like. It is, generally, too trivial to be a literary work.” [12]

There is certainly a long line of case law based on the principle that titles and names are generally too insubstantial to be considered literary works. But some commentary following the Fairfax decision queried whether all headlines are comparable in this regard with titles and names.

There is an argument that news headlines should be distinguished from titles because a headline will often be the basis for deciding whether or not to read the story, and so will ‘make or break’ the story. Contrast this with books, songs or movies, for example. Also, in some cases, a headline neatly encapsulates the essence of the story. It is arguable that, in the case of some headlines at least, there is a significant degree of skill and effort that goes into the selection of the particular words comprising the headline, few though they may be. For a particularly clever title, it may be that more effort and skill has been exercised in the selection of those words than, say, in writing a short news story to accompany it.

While Justice Bennett concluded that copyright did not subsist in the particular headlines put forward by Fairfax, she did not rule out the possibility altogether: “It may be 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”[13].

Perhaps surprisingly, Fairfax did not appeal the case. However given that the question of subsistence in headlines remains open, we may see another attempt in the future.

Future outlook

Eric Schmidt, chairman and CEO of Google, believes the clash between news aggregators and news creators will largely be resolved through commercial partnerships between the two: “I believe…we all have to work together to fulfill the promise of journalism in the digital age,” Schmidt wrote recently in The Wall Street Journal online. [14]

“Google is serious about playing its part. We are already testing, with more than three dozen major partners from the news industry, a service called Google Fast Flip. The theory—which seems to work in practice—is that if we make it easier to read articles, people will read more of them. Our news partners will receive the majority of the revenue generated by the display ads shown beside stories.

“Nor is there a choice, as some newspapers seem to think, between charging for access to their online content or keeping links to their articles in Google News and Google Search. They can do both.”

While Schmidt may be right about the partnership ahead, the key copyright cases being fought now and in the immediate future are likely to have a significant effect on the terms of such a partnership.

Australian Copyright Council

November

2010

[1] Kimberly Isbell, Berkman Centre for Internet & Society (Harvard University), Research Publication no. 2010-10, 30 August 2010, p. 6.

[2-4] Graham Smith, Bird & Bird, Lexology, March 13 2007.

[5] UK Copyright Tribunal, Colin Birss QC, on Meltwater Holding BV v NLA Ltd, 25 Feb, 2010. P.2

[6] Robert Andrews, paidContent.com; Sept. 20, 2010, at http://finance.yahoo.com/news/Interview-Meltwater-CEO-paidcontent-3545413581.html?x=0

[7-9] UK Copyright Tribunal, as per [5]. P.4

[10] Robert Andrews, as per [6]

[11] Kimberly Isbell, as per [1]

[12-13] Fairfax Media Publications Pty Ltd v Reed International Books Australia Pty Ltd [2010] FCA 984 at 44, 46

[14] Eric Schmidt, The Wall Street Journal, http://online.wsj.com/article/SB10001424052748704107104574569570797550520.html