Another nail has been knocked in the coffin of Australia’s flimsy copyright laws with a Federal Court ruling that headlines are not covered by copyright... and even if they were, repeating in aggregation sites them would be protected by ‘fair dealing’ provisions.

A PANPA newsletter reports on the outcome of the four-year Fairfax Media v Reed International case. On behalf of its ‘Australian Financial Review’, Fairfax had argued that Lexis-Nexis’s ABIX abstract service was infringing its copyright by reproducing headlines with abstracts. Justice Bennett ruled that headlines were not “capable of being literary works in which copyright can subsist”, and that Fairfax failed to prove so. And he went on to say that Reed would in any case have been able to rely on the ‘fair dealing’ for the purpose of reporting news.

PANPA reports that Fairfax is considering appeal options.

The judgement – described by John Swinson of Reed’s lawyers, Mallesons Stephen Jaques, as the first case in any common law court that had to consider the copyright nature of newspaper headlines – is a sad one for newspapers in Australia and the world.

Swinson makes the comparison between headlines and the titles of books and films – which he says are not regarded as protected by copyright – but the argument is questionable. The creativity implicit in many headlines – in the context of the stories they accompany – is part of the creativity of the newspapers themselves. Information itself cannot be copyright, but it has previously been accepted that the arrangement of words can.

And many would agree that there is a fundamental difference between book and film titles – the use of which, like newspaper mastheads themselves, would be partly covered by common law – and a newspaper headline.

‘Fair use’ might cover Swinson’s argument that quoting its headline was the “best and only way” to refer to a specific newspaper report. For the rest – and particularly in the case of widespread use of headlines in aggregation websites – the user is trading on a newspaper’s ability to create an eye-catching headline.

PANPA reports Financial Review Group chief executive Michael Gill’s disappointment at the judgement: “It is not consistent with what is necessary to protect intellectual property in the digital media environment,” he says. Hopefully Fairfax will go back to court on this, perhaps with the support of the industry.

Peter Coleman