Is this headline protected by copyright? Federal Court says no as Fairfax loses copyright infringement case.

In Fairfax Media Publications Pty Ltd v Reed International Books Australia Pty Limited [2010] FCA 984, the Federal Court held that newspaper headlines are not substantial enough to qualify for copyright protection and that even if they are, their reproduction by news aggregating services, including where the reproduction is part of a commercial enterprise in competition with the original publisher, would be protected under the defence of fair dealing. The case is the first time that the question of whether copyright subsists in a newspaper headline has been decided by an Australian court.

In practice

Clients should be reminded that copyright will not subsist in works which are very short. News aggregating services and other content redistributors will be able to continue using the headlines of articles published in newspapers and magazines to provide abstracts of those articles to their subscribers without having to obtain the consent of the original publishers or pay a licence fee to them for the right to do this. There is a long line of authority which holds that as with newspaper headlines, copyright does not subsist in short works, such as titles(1), advertising slogans(2) and short phrases(3). Whereas it was possible for the authors of short works such as titles and advertising slogans, in the absence of copyright protection, to rely on trade mark registration, the tort of passing off or a claim for misleading and deceptive conduct to protect against unauthorised use (4), these measures are not available or effective in the case of newspaper or magazine headlines. Without copyright protection, it is difficult to see how newspaper and magazine publishers would be able to control access to and reproduction of their content online. They may be creative, original and clever, and involve a lot of effort and thought, but in the recent decision of Fairfax Media Publications Pty Ltd v Reed International Books Australia Pty Limited [2010] FCA 984, the Federal Court of Australia has ruled that newspaper headlines do not, as a class, enjoy copyright protection.

The case involved copyright proceedings brought by Fairfax Media Publications Pty Ltd (Fairfax) against Reed International Books Australia Pty Limited (Reed) and concerned Reed's conduct in reproducing newspaper article headlines from Fairfax's Australian Financial Review (AFR) in its ABIX news service (ABIX Service). The ABIX Service provides Reed's subscribers with daily abstracts of news reports and articles published in various newspapers and magazines, including articles in the AFR. Each abstract contains the (unchanged) headline of the original article, the by-line of the journalist who wrote the article, and a short summary of the article written by an employee of Reed.

In the proceedings, Fairfax sought a declaration...