Fairfax Media Publications Pty Ltd v Reed International Books Australia Pty Ltd; 7 Sep 2010

References: [2010] FCA 984
Links: Austlii
Coram: Bennett J
Ratio: Austlii (Federal Court of Australia)
COPYRIGHT – respondent reproduces headlines and creates abstracts of articles in the applicant’s newspaper – whether reproduction of headlines constitutes copyright infringement – whether copyright subsists in individual newspaper headlines, in an article with its headline, in the compilation of all the articles and headlines in a newspaper edition and in the compilation of the edition as a whole – literary work – copyright protection for titles – use of headline as citation to article – policy considerations – originality – authorship – whether presumption of originality for anonymous works available – whether work of joint authorship – whether the headlines constitute a substantial part of each compilation – whether the work of writing headlines is part of the work of compilation – whether fair dealing for the purpose of or associated with reporting news
ESTOPPEL – whether applicant estopped from asserting copyright infringement by respondent – applicant has known for many years that headlines of the applicant’s newspaper are reproduced in the abstracting service – applicant had subscribed to and resupplied the abstracting service – whether respondent relied on an assumption that the applicant will not assert copyright infringement by reproduction by headlines – whether applicant created or encouraged the assumption – detriment – whether unconscionable to depart from assumption
Bennett J said: ‘In my view, the headline of each article functions as the title of the article . . It may be a clever title. That is not sufficient. Headlines are, like titles, simply too insubstantial and too short to qualify for copyright protection as literary works. 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 . . It may be that evidence directed to a particular headline, or a title of so extensive and of such a significant character, could be sufficient to warrant a finding of copyright protection . . but that is not the case here . . Fairfax claims copyright in the headlines as a class of work, based on the evidence of a general practice that headlines are determined by staff and settled at meetings of staff to provide a title to a story which also fits into the format of the page . . That is insufficient to overcome the reasoning for the established practice of denying copyright protection to titles which is the apt characterisation for headlines as a class . . 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 . . If titles were subject to copyright protection, conventional bibliographic references to an article would infringe. Such considerations may well be a reason for the fact that headlines and ‘short phrases’ are excluded from copyright in the United States . . In my view, to afford published headlines, as a class, copyright protection as literary works would tip the balance too far against the interest of the public in the freedom to refer or be referred to articles by their headlines.’
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