UK High Court finds copyright in headlines

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However, in the subsequent case of Newspaper Licensing Agency Ltd v Meltwater Holding BV [2010] EWHC 3099 (Ch) (Newspaper Licensing), the UK High Court held that some headlines were independent literary works in which copyright subsisted, and in other circumstances could be part of the article they headed.

Both cases involved subscription news services which used the exact headlines of the original articles. 

Is a headline sufficiently original to be a literary work?

The main issue in both cases was whether headlines, either individually or as a class, have the quality of originality necessary for them to be literary works.

In Fairfax, the ten sample headlines from the Australian Financial Review were held to be generally lacking in originality and thus did not qualify for copyright protection as literary works.

Fairfax put forward evidence of the specific skill and extensive work required for headline writing, and its general practice of writing and settling headlines.  However, this evidence was deemed insufficient to overcome the established law of denying copyright protection to titles.  Justice Bennett did note, however, that copyright could possibly subsist in a headline of significant original character.

In the UK, Newspaper Licensing only claimed copyright in headlines it considered sufficiently original to attract copyright protection.  The UK High Court found Fairfax persuasive, but was obliged to consider and apply the European Court of Justice’s decision in Infopaq International v Danske Dagblades Forening [2010] FSR 495, which concerned the status of text extracted from articles.  Infopaq held that sentences, or even parts of them, could attract copyright if they conveyed the originality of the protected work in an element which expressed the intellectual creation of the author. 

The UK High Court held that some of Newspaper Licensing’s headlines either contained an element which satisfied the Infopaq test, or were clearly the product of labour and skill, and were therefore original.  The headlines were “not merely isolated words or clauses which in themselves convey no meaning.  They provide the tone of the article and generally have the special function of drawing the reader in to the world as a whole”.

The UK High Court’s decision was partly based on evidence that there was considerable skill in devising headlines to entice a reader by informing them of the article’s content in an entertaining manner.  Newspaper Licensing’s evidence on the process of headline creation was vital in establishing a strong connection between the skill and labour expended in producing a headline and the content of the related article.  This allowed the UK High Court to find the Infopaq test satisfied.

Newspaper Licensing also confirmed that substantiality now has little role to play in UK copyright law after Infopaq, and only originality is required of an extracted part of a protected work.  However, in Australia, the taking of a “substantial part” of a copyright work is still required to prove infringement.

Is a headline part of its related article?

The UK High Court also held that some of the headlines were independent literary works while other headlines were held to be part of the text extracted from the original article.  The second finding was based on evidence that a headline is “part of” an article and often derived from or reflective of it, with the opening text and the headline together comprising “significant and striking features of the article.”

However, Mrs Justice Proudman also commented on the possibility of headlines falling into a third category which would not attract copyright: headlines independently authored by someone other than the author of the underlying article.  This distinction appears to be consistent with Fairfax where the evidence indicated that it is common practice for headlines to be written by editorial staff and not by the authors of the underlying articles. Authorship is an important consideration in Australian copyright law, and Infopaq and Newspaper Licensing may be distinguished on this basis.

The public interest argument

In Fairfax, Justice Bennett held that affording copyright protection to published headlines as a class would undermine the important public interest in being able to reference articles by their titles.  In Newspaper Licensing, the publisher only claimed copyright in headlines it considered sufficiently original to attract copyright protection. Mrs Justice Proudman considered that such protection did not tip the balance too far against the public interest in that case.

Possible effects of the Newspaper Licensing case

Newspaper Licensing may have an impact on online publishing, where headlines are often contained in indexes and hyperlinks.  Headlines are also used by many online news compilation services which need to reference the summarised content.  Care will need to be taken in such circumstances by publishers in the UK who may, on the authority of Newspaper Licensing, be infringing copyright.  However, whether the decision will be adopted or distinguished in Australia remains to be seen.

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