Newspaper fails to prove copyright infringement by news service

The applicant in the case, Fairfax, publishes the AFR nationally in both print and digital form.  The respondent, Reed, who trades as LexisNexis, provides the “ABIX” subscriber service consisting of abstracts of articles from the AFR and other newspapers and magazines.  Each abstract includes the headline of the subject article, the byline of the journalist authors, and a short summary written by an employee of Reed. 

Fairfax alleged that, by providing the abstracts as part of the ABIX service, Reed infringed Fairfax’s copyright in each of the following original literary works:

1. each individual headline in an AFR edition;
2. each AFR article, including its headline and byline;
3. the compilation consisting of all of the articles in an AFR edition; and
4. each entire edition of the AFR.

Subsistence of copyright

An Australian Court had not previously decided whether the headlines of newspaper articles were literary works in which copyright subsisted under the Copyright Act 1968 (Cth) (Act).  In this case, the Court held that Fairfax’s ten sample headlines did not qualify for copyright protection as literary works as they were generally lacking in originality.  It did not matter whether the headlines were interesting and clever, or merely conveyed a fact or idea; more than mere authorship was required.

Justice Bennett said that headlines are generally too insubstantial and short to be literary works capable of copyright protection, as a headline functions as an article title and a brief statement of its subject.  “It is, generally, too trivial to be a literary work much as a logo is held to be too trivial to be an artistic work, even if skill and labour has been expended on creation”.

The public interest in referencing articles by their headlines was also relevant.  Her Honour stated that: “In my view, to afford published headlines, as a class, copyright protection as literary works would tip the balance too far against the interests of the public in the freedom to refer or be referred to articles by their headlines”.

It was not in dispute that the text of the AFR articles and each AFR edition were literary works within the meaning of the Act.  The Court also confirmed that copyright can subsist in a subset of a published work, holding that the AFR article compilation was a literary work separate to the full AFR edition because discrete skill and labour was expended in the compilation’s preparation.

Joint authorship in the article/headline combinations

Fairfax submitted that each article/headline combination published in the AFR was a work of joint authorship as it was produced by collaboration, with the contributions of journalist and sub-editor inseparable from each other.  The Court rejected this argument, citing the byline as supporting the general proposition that straightforward editing for style and length is not sufficient to attract joint authorship. The contributions of each author were found to be distinct. 

Did Reed infringe copyright by reproducing AFR headlines and bylines in the ABIX abstracts?

Reed’s use of the AFR headlines in the ABIX abstracts was held not to be a reproduction of a substantial part of the AFR articles, compilation or edition because the headlines were not original literary works.

With respect to the article/headline combinations, the Court referred to the 2009 High Court case of IceTV Pty Limited v Nine Network Australia Pty Ltd, finding that part of a work cannot be said to be a substantial part if the part itself has no originality and would not attract protection alone.  Even if an article/headline combination had been a discrete literary work (which it was not) the headline itself was not original and could not therefore be a substantial part of the work. Therefore its use by Reed did not amount to infringement.

Reed was held not to have taken a substantial part of either the AFR article compilation or the AFR edition, because Reed did not take any part of Fairfax’s original skill and labour in selecting, coordinating and arranging either compilation.  The Court particularly noted that the ABIX abstracts differ in appearance and arrangement to the original AFR articles and the headlines do not appear in the same order as they appear in the AFR.