Fairfax Media loses copyright case over Financial Review headlines

Media giant Fairfax Media has lost a copyright fight with fellow publisher Reed International, after claiming that Reed had infringed its copyright by using headlines from the Australian Financial Review in a press clipping services.

Reed owns and operates the LexisNexis, which publishes stories from a daily abstracting service called ABIX, which provides abstracts from 70 publications, including the AFR.

Fairfax wrote to LexisNexis in February 2007, alleging that the reproduction of AFR headlines in ABIX infringed Fairfax’s copyright. In July 2007, Fairfax launched action in the Federal Court over the allegations. The media giant did not seek damages, but was instead looking for the Court to prevent LexisNexis using AFR headlines in the ABIX abstracting service.

The case, which came before Federal Court Judge Annabelle Bennett, centred on 10 AFR headlines used by ABIX.

As Bennett commented, the headlines ranged “from the more prosaic: ‘Investors warned on super changes’ and ‘Builders report fall in house sales’ to ones that employ what might be thought of as a more interesting and clever use of words, such as ‘Blackout probe sheds little light’ and ‘Returns after tax will be simply super’.”

However, Bennett’s judgement – which contains a thorough examination of the process of writing, compiling and editing a story, and deciding on a headline – came down in favour of Reed.

“Headlines generally are, like titles, simply too insubstantial and too short to qualify for copyright protection as literary works,” she wrote.

“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… even if skill and labour has been expended on creation.”

“Fairfax has failed to prove that any of the 10 selected Article/Headline Combination is a discrete work of joint authorship in which copyright can subsist.”

Fairfax said in a statement that it is considering an appeal. Michael Gill, chief executive officer of the Financial Review Group, said the decision was “disappointing for newspaper publishers in general. It is inconsistent with what is necessary to protect intellectual property in the digital media environment.”

Law firm Mallesons Stephen Jaques, which represented LexisNexis, said in a statement that the case had wider applications for businesses that use headlines from other sources.

“Businesses that abstract and summarise the works of others will be able to continue to use the title or headline of the original source when citing the original source.”