Court finds no copyright in newspaper headlines

Yesterday, the Federal Court delivered its judgment in a case between Fairfax Media Publications Pty Ltd (Fairfax) and Reed International Books Australia Pty Ltd trading as Lexis-Nexis (Lexis-Nexis). As Rupert Murdoch’s recent comments have shown, the reproduction of news content has become an increasingly alarming issue for media companies.

The parties

Fairfax is the publisher of The Australian Financial Review (AFR). The AFR is available as a daily newspaper (except Sundays) in paper form and electronically online behind a paywall.

Lexis-Nexis is a publisher of a database service that contains information about law, news, business and politics (amongst other topics). One of Lexis-Nexis’s services is ABIX, which provides to subscribers abstracts of articles published in various newspapers and magazines from around the world. As part of ABIX, Lexis-Nexis provided abstracts of articles from the AFR. Each abstract includes the headline and by-line verbatim with a short summary of the article written by a Lexis-Nexis employee. Abstracts of around 40-60% of articles in each edition of the AFR appear in ABIX.

The issue

Fairfax alleged that in reproducing the articles as a headline, by-line and abstract, Lexis-Nexis infringed its copyright in the AFR articles.

The decision

The Court found that a headline cannot be capable of being a literary work in which copyright can subsist. Further, the Court found that the abstracts as a whole did not take a substantial part of the articles. Finally, the Court found that even though Lexis-Nexis was not infringing Fairfax’s copyright, even if it was, it would be able to make use of the fair dealing defence on the basis that it was for the purpose of reporting news.

The impact

As subscribers to the AFR online can attest, Fairfax charges a premium price for its AFR content. This judgment delivers another blow to the campaign by News Corp and others against news aggregator sites such as Google News and calls into question the viability of the paywall model in the long-term. It remains to be seen whether newspaper and magazine publishers will look to new models like music publishers have done, or will stick it out in the face of decisions like this.

For assistance with copyright matters, please contact Certus Legal Group.