The Federal Court has recently handed down a landmark decision and has decided that copyright does not exist in newspaper headlines. This decision affects news aggregators or services that summarise the work of others for distribution to their readers.
The case in particular is Fairfax Media Publications Pty Ltd –v- Reed International Books Pty Limited t/as Lexis-Nexis  FCA 984. The full decision can be read here.
Fairfax publishes the Australian Financial Review (AFR), while Lexisnexis operates the ABIX service which provides daily extracts of a number of sources including the AFR. It is similar to a news aggregation service. Extracts of AFR had been appearing in ABIX for over 20 years.
Fairfax wanted to stop Lexisnexis from using AFR’s headlines and brought proceedings against Lexisnexis for infringement of copyright in the headlines of the articles. No proceedings were brought for the articles themselves. Fairfax argued that the headlines were copyright work by themselves, or was a substantial part of work that was copyright (the articles or the newspaper).
Lexisnexis argued that copyright did not subsist in headlines, and that it had a defence under the Copyright Act as it was reporting news and cited the original source.
The court decided that headlines were not capable of being literary works that can be protected by copyright. The court decided that headlines generally are “simply too insubstantial and too short to qualify for copyright protection as a literary works”.
In addition to this the court considered that Lexisnexis could rely on a defence in the Copyright Act in relation to reporting the news. The court found that Lexisnexis had invested skill and effort in preparing the extracts, and the use of the headline was a proper citation to the original article.
Naturally the biggest implication for this decision is for news aggregators or services that summarise the work of others and distribute it to their readers. This decision effectively allows these services to continue using the title or headline of the original source in their abstracts – as long as it cites the original source.
Care must still be taken by these services in that they do not reproduce substantial parts of the original article. This will certainly infringe on the copyright of those articles.
About the author
Kenneth Ti is an Associate Solicitor with Phang Legal and a graduate from the University of New South Wales. He has a background in financial services and insurance, and is focused on commercial and intellectual property matters. Kenneth is a strong believer in small business, the community, and pro bono work.