Headline copyright shock horror!
Jinfo Blog

10th September 2010

By Tim Buckley Owen

Item

News headlines are too short and insubstantial to qualify for copyright protection, an Australian court has ruled. The ruling was given in a case involving LexisNexis, and could conceivably have implications for a High Court action that the Newspaper Licensing Agency is currently pursuing in the United Kingdom. In a case brought in the Federal Court of Australia, the newspaper publisher Fairfax alleged that the use of headlines from the Australian Financial Review (which it publishes) in LexisNexis Australia’s ABIX abstracting service infringed Fairfax’s copyright. However the Court ruled that, despite the ‘skill and labour’ involved in writing headlines, they were simply meta-information about the work, required for effective citation of the article, and should be excluded from copyright protection, as were titles generally (full judgement at http://digbig.com/5bchss). Reporting on the judgement in a LexisNexis blog, the lawyer representing LexisNexis in the case, Jon Swinson, pointed out that there is no general ‘fair use’ defence in Australia, although there is a limited and specific defence in the Australian Copyright Act for the reporting of news, on which Justice Annabelle Bennett said LexisNexis could rely. The Court also recognised that LexisNexis invested skill, labour and effort in preparing its abstracts and the use of a headline as a proper citation had to be considered in this context (http://digbig.com/5bchst). It remains to be seen what bearing if any the ruling may have on the cases involving the commercial use of web links being considered in the UK by the Copyright Tribunal and the High Court (see http://www.vivavip.com/go/e27632 http://www.vivavip.com/go/e27815 and http://www.vivavip.com/go/e29171 for background) – although the issue is admittedly not quite the same. But, writing in his Media Guardian blog, Roy Greenslade suggests that it has ‘far-reaching implications for publishers who are seeking to seal off their editorial content from people who do not pay for access to their online material’ (http://digbig.com/5bchsw). Intriguingly, Fairfax doesn’t in this case seem to have attempted to question LexisNexis’s right to summarise its articles, even though the creation of an abstract may be regarded as a direct attempt by a competitor to substitute for the original copy – far more so than reproducing the headline, in fact. Elsewhere, LexisNexis is currently in negotiation with an unnamed media company about carrying abstracts of News International items following that company’s decision to remove all its archived full text material from Nexis (http://www.vivavip.com/go/e30255). As previously mentioned on LiveWire, abstracting still remains a bit of a legal grey area. The fact that Fairfax went in this instance for the headlines rather than the abstracts – and lost – suggests that there’s much more to come on this vexed topic of reporting other people’s news.

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