Fairfax, the publisher of the Australian Financial Review (AFR) daily newspaper, sued LexisNexis, which published ABIX, a service which provided headlines and short summaries of the day's news from various sources, including the AFR.
Fairfax claimed that ABIX infringed copyright in its headlines and asked Australian courts to stop LexisNexis from using its words.
The Federal Court of Australia has ruled, though, that the headlines are not protected by copyright law because they are too insubstantial; because they are not a discrete work of joint authorship; because they do not represent a substantial part of the newspaper as a whole; and because LexisNexis's use qualified for the fair dealing exemption from copyright law put in place to protect news reporting.
"Headlines generally are, like titles, simply too insubstantial and too short to qualify for copyright protection as literary works," said Judge Annabelle Bennet in the ruling. "The function of the headline is as a title to the article as well as a brief statement of its subject, in a compressed form comparable in length to a book title or the like. It is, generally, too trivial to be a literary work, much as a logo was held to be too trivial to be an artistic work, even if skill and labour has been expended on creation."
"The majority of the headlines in the sample editions are short factual statements of the subject of the article. The addition of a pun does not, of itself, in the absence of evidence, convert such statements into literary works," she ruled.
The judge said that headlines needed to be free from copyright protection so that articles could be identified and referred to in the future.
"The need to identify a work by its name is a reason for the exclusion of titles from copyright protection in the public interest. A proper citation of a newspaper article requires not only reference to the name of the newspaper but also reproduction of the headline," she said. "If titles were subject to copyright protection, conventional bibliographic references to an article would infringe."
Fairfax claimed that the headline was the result of joint authorship of the article and headline by the reporter and the sub-editor who would have written the headline based on the content of the article and the space available on the newspaper page.
"The evidence suggests that article writing is a process distinct from headline writing. Even if the sub-editors and the journalists collaborate on producing an edition of the AFR, the evidence is that the writing of headlines is a separate task performed by sub-editors and the person who writes the article is generally not the person who writes the headline," said the ruling. "An article with its headline is not a work of joint authorship because the contribution of each author is separate from the contributions of the other author."
"The evidence does not establish joint authorship of the ten selected Article/Headline combinations within the meaning of s 10(1) of the Act, as Fairfax's evidence makes it clear that the writing of articles and the writing of headlines are separate and distinct tasks with different authors. Accordingly, the Article/Headline combination is not a discrete work in which copyright can subsist," said the judge.
The Court also said that the headlines were not a "substantial part" of any whole edition of the AFR, so the copyright in the whole edition had not been infringed by the re-use of headlines.
The Court accepted LexisNexis's defence that the content is also protected by the 'fair dealing' exemption from copyright in Australian law, which applies to the use of material for the purpose or news reporting.
Judge Bennet said that the material was not entitled to copyright protection, but that even if it were, its use by LexisNexis would be protected by the fair dealing exemption.
"I would have found that, even if the headlines constitute a substantial part of works in which copyright subsists, [LexisNexis's] conduct in reproducing and communicating the AFR headlines as part of the Abstracts is a fair dealing for the purpose of reporting news," she said.