Is there copyright in this headline? The UK says yes, Australia says no!

In early September this year we blogged here about the groundbreaking decision of the Federal Court of Australia in Fairfax Media Publications Pty Ltd v. Reed International Books Australia Pty Ltd [2010] FCA 984.  In that decision the Court found that the headlines in the AFR were too insubstantial and too short to qualify for copyright protection as literary works, despite the skill and labour involved in writing them.  In addition the Court also decided that Reed could rely upon a defence in the Copyright Act of fair dealing for the reporting of news. The Court recognised that Reed 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.  This decision was not appealed by Fairfax.

 The UK High Court has recently released its decision in The Newspaper Licensing Agency Ltd & Ors v Meltwater Holding BV & Ors [2010] EWHC 3099 (Ch).  This case involved the use of headlines in a media monitoring service.  While the Court made a number of references to the Australian decision of Fairfax v Reed in the end it was persuaded that the headlines in question were copyright works because:

a) the evidence before Her Honour was that the creation of the headlines involved “considerable skill in devising and they are specifically designed to entice by informing the reader of the content of the article in an entertaining manner” and

b) the test that governs whether a work is protected by copyright in the UK is broader in the light of the European Court of Justice case of Infopaq International v Danske Dagblades Forening. We note that it is open to question whether the ECJ decision in Infopaq (which concerned issues of reproduction rather than subsistence of copyright) stands for the propositions advanced by Proudman J of the High Court.

 The UK High Court also found that the defendants could not rely on the fair dealing exception in this case.  This was because the Court construed the fair dealing exceptions to apply to situations where there was a public interest in the copyright infringement.  In this case, the copyright infringement was for a private purpose (to enable the media monitoring services to send their products to their private customers) and was done for commercial purposes.

 The UK High Court’s decision is contrary to earlier UK decisions that held that there is no copyright protection in titles of books or movies, or in advertising slogans, no matter how clever or unique. In addition this decision puts the UK out of step with the legal position in Australia and US on this issue.  The effect of this decision is far reaching, both for news aggregator services such as Google News in Europe, and potentially for any person who needs to use a headline or title of a work to cite to a work, at least for commercial purposes.  One struggles to see how a person would be able to use the title of a work for commercial purposes in the UK without potentially infringing copyright.

 Meltwater’s CEO has announced his intention to appeal the decision, an appeal the IP Whiteboard crew will be watching closely. In the meantime all one can do is recommend to aspiring newspaper sub-editors to “Go North, young man!”

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