Are headlines literary works in which copyright can subsist?
28 Reed points out that Fairfax has not adduced any evidence of the skill and labour in producing the headlines in the June edition, which Reed accepts as representative. The only evidence that Fairfax has adduced about the selected headlines in the November edition is the evidence in the Bailey Report about the Telstra Headline and the Health Headline, both page 1 headlines. In relation to the Telstra Headline, Reed submits that the evidence explains that most of the effort was directed to ensuring that the story was accurate and that the headline followed this, mainly by using words from the article. Reed says that the examples of the Telstra Headline and the Health Headline do not suffice to establish any skill or labour involved in the production of the selected headlines in the sample editions.
29 Fairfax contends that to establish originality, it is not necessary for there to be specific evidence of the amount of time and effort put into the creation of specific works. It is not necessary, it says, that hours or minutes are put into the creation of that which is self-evidently literary. In the case of headlines which are created on the day and are therefore plainly not slavishly copied, the Court can, Fairfax says, directly appreciate the originality in the crafting of the words of the headlines.
30 In Kalamazoo (Aust) Pty Ltd v Compact Business Systems Pty Ltd (1985) 5 IPR 213, Thomas J usefully summarised some relevant authorities. As his Honour noted at 232, there has been general but not universal judicial acceptance that a literary work is one that gives "information, instruction or pleasure in the form of literary enjoyment" (referring to the definition of "literary work" in Hollinrake v Truswell [1894] 3 Ch 420 at 427-428 per Davey LJ) and that it is not a question of literary merit. There is also acceptance generally that there must be a degree of originality: some labour, skill, judgment or ingenuity involved in the expression of the idea. An assessment of that originality involves knowledge of the author and an understanding or appreciation of what went into the claimed work. That may be apparent on the face of the work, such as a newly authored novel. It may require an understanding of the skill and labour involved, such as in the case of a compilation. It may, more usually, require some appreciation of both to varying degrees. As Thomas J observes at 234, the question is not the novelty or the worth of the thought which a person injects into their work, but whether the expression is original. As Dixon J said in Victoria Park Racing & Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479 at 511, '…[t]he work need show no literary or other skill or judgment. But it must originate with the author and be more than a copy of other material'. As Isaacs J pointed out in Sands & McDougall Proprietary Ltd v Robinson (1917) 23 CLR 49 at 55, "author" and "original work" have always been correlative (as confirmed in IceTV at [34]). However, his Honour also said at 53 that as "author" connotes some amount of originality, the express use of the word "original" in the Act must carry some additional meaning, which his Honour described as 'inventive originality' and said that a suggestion that it was sufficient for a person to be an author 'would be revolutionary'. For copyright to subsist in a work, one or more authors must have expended sufficient effort of a literary nature directed at the form of expression of the work (IceTV at [42] and [99]). The form of expression of the work must be the result of particular mental effort or exertion by the author/s and cannot be essentially dictated by the nature of the information.
31 That is not to say that a copyright work must necessarily be "inventive" but it must involve more than mere authorship. This is consistent with the opinion expressed by Isaacs J in Sands. This may be another way of saying that it must be not only original in the sense of authorship, but also a work. As French CJ, Crennan and Kiefel JJ said in IceTV at [16]-[ 28] in explaining the idea/expression dichotomy:
Copyright is given in respect of the particular form of expression in which an author conveys ideas or information to the world (at [26]).
Copyright does not protect facts or information. To do so would impede the reading public's access to and use of facts and information. It protects the particular form of expression of the information: the words, figures and symbols in which the pieces of information are expressed and the selection and arrangement of that information (at [28]).
Copyright is not given to reward work distinct from the production of a particular form of expression (at [28]).
32 The precise question of whether copyright subsists in newspaper headlines has not been decided by any Court in Australia. The Scottish case of Shetland Times Ltd v Wills [1997] FSR 604; (1996) 27 IPR 71 concerned an application for an interlocutory injunction. Despite a concession that a headline could be a literary work and an observation that the headlines in question were 'designedly put together' for the purpose of imparting information, Lord Hamilton expressed the reservation that, 'while literary merit is not a necessary element of a literary work, there may be a question whether headlines, which are essentially brief indicators of the subject matter of the items to which they relate, are protected by copyright' (27 IPR 71 at 74-75). His Lordship did not reach a final conclusion on the question.
33 Reed submits that there is an important public policy reason for excluding titles, including headlines, from copyright protection, being the need to identify a work by its name. The use of titles to articles and books for the purposes of identification, including for bibliographic purposes, is well-known and routine. Reed contends that if copyright protection is afforded to headlines, there will be a significant detrimental impact to all bibliographic and reference systems which proceed on the footing that there is no infringement of copyright to reproduce in full the title of a book, essay, play, song, newspaper article, and so on. The reproduction of the title, Reed says, is the proper way to refer to the item in question. Reed says that its Abstracts similarly reproduce the AFR headlines and by-lines to provide a proper reference to the AFR articles and to enable them to be located.
34 Reed finds support for its position in the fair dealing defences in the Act (ss 41, 42, 44, 45, 103A and 103B), which require that there be a "sufficient acknowledgement" of the relevant work. Sufficient acknowledgement as defined in the Act generally requires identification of the work by its title or other description. Reed submits that the definition proceeds on the footing that identifying a work by its title will not infringe copyright in the title. The evidence, including from citation guides, is that the proper citation of a newspaper article requires reproduction of the headline. Reed submits that a Court should be very slow to find that a conventional bibliographic reference to an article would constitute possible infringement of the headline. Fairfax denies, however, that the requirement of sufficient acknowledgement supports Reed's position. It points out that if the use of an article is a fair dealing under the Act, then a reference to the headline will also be a fair dealing such that there would be no infringement even if the headline is itself a copyright work.
35 Fairfax submits that the public policy considerations raised do not support Reed's position as Reed is not in the position of a researcher or academic who wishes to cite an article by reference to its title, or an author who wishes to refer to an article to critique it. Rather, Fairfax says, Reed copies large numbers of its headlines and by-lines and uses them for directly competitive purposes, seeking to substitute for Fairfax's content and remove the need for subscribers to review the AFR. Further, Fairfax submits that if widespread practice in bibliographic referencing does not conform to the letter of the law, it is a matter for the Parliament to amend the law if it so chooses.
36 Reed contends that headlines are analogous to a title of a book or other work and relies on the fact that titles, slogans and other short phrases have been consistently refused separate protection under Australian and English copyright law. In IceTV, French CJ, Crennan and Kiefel JJ acknowledged that generally speaking, no copyright could be claimed in a programme title alone (IceTV at [27] referring to Garnett K, Davies G, Harbottle G, Copinger and Skone James on Copyright (15th ed, Sweet & Maxwell, 2005) at [3-16] and Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 All ER 465 at 469 per Lord Reid). Reed concedes that there has been not been complete uniformity in reasoning in previous cases and texts and submits that the correct view is the de minimis principle: that titles and the like are simply too insubstantial and too short to qualify for copyright protection as literary works. Reed relies on the following comments of the Privy Council in Francis Day & Hunter Ltd v Twentieth Century Fox Corp Ltd (1940) AC 112 at 123:
As a rule, a title does not involve literary composition, and is not sufficiently substantial to justify a claim to protection. That statement does not mean that in particular cases a title may not be on so extensive a scale, and of so important a character, as to be a proper subject of protection against being copied. As Jessel MR said in Dick v Yates…there may be copyright in a title "as, for instance, in a whole page of title of something of that kind requiring invention".
37 Reed acknowledges that courts have recognised the possibility of copyright protection for short forms of literary expression in exceptional cases but relies on the fact that no modern Australian or English cases involving titles, slogans or other short phrases have been brought within this preserve. It points out that a typical newspaper headline is far less substantial, in quantitative terms, than the example of the 'whole page of title' referred to in Dick v Yates (1881) 18 Ch D 76 at 89.
38 In other cases, the basis for denying protection appears to have been a perceived lack of originality (for example, in Sullivan v FNH Investments Pty Ltd (2003) 57 IPR 63 at [112]-[114]). Fairfax contends that this basis does not apply to the ten selected headlines because they are clearly "original" in the relevant sense. Fairfax points to Mr Short's evidence as set out at [21]. Fairfax accepts that copyright protection has been denied to works such as titles and single words but submits that past cases do not dictate the same result for the ten selected headlines in the present case.
39 The authors of Laddie H, Prescott P, Vitoria M et al, The Modern Law of Copyright and Designs (3rd ed, Butterworths, 2000) commented at [3.62] that most cases in which a work was considered too slight a matter to deserve copyright protection were cases concerning titles of publications and advertising slogans. This is so even where it is apparent that skill and labour had gone into the creation of the word (e.g. 'ExxonI') or title (e.g. 'Where there's a Will there's a Way'). Interestingly, the authors acknowledge that Courts may now be more ready to afford copyright protection to advertising copy to recognise that such material may require creative activity of a high order (at [3.62] at footnote 10 and see Budget Eyewear Australia Pty Ltd v Specsavers Pty Ltd [2010] FCA 507). However, they observe that the Courts may in fact be denying protection on the ground that some advertising slogans and titles are too short to be a literary work at all, regardless of any skill or labour. Copinger also refers to the reluctance of English courts to confer copyright protection on titles of newspapers, magazines, books and the like (at [3-16]). Examples of refusal extend to the clever use of words to convey more than a simple description of the subject matter. The authors note that the courts have, however, been careful not to rule out the possibility for such protection in appropriate circumstances, although also noting that no such decision has ever been made.
40 In my view, the headline of each article functions as the title of the article. Indeed, "headline" is defined in the New Shorter Oxford English Dictionary (5th ed, Oxford University Press, 2002) to mean, relevantly, 'The line at the top of a page containing the title etc; a title or subtitle in large type in a newspaper etc' and, in the Macquarie Dictionary (3rd ed, The Macquarie Library, 1998) to mean, relevantly, 'a display line over an article etc, as in a newspaper; the line at the top of the page, containing the title, pagination etc'.
41 It may be a clever title. That is not sufficient (cf "Opportunity Knocks" for a game show; "The Man who Broke the Bank at Monte Carlo" for a song; "Splendid Misery" for a novel). It may be an indication of the content of the article and that is not sufficient (cf "The Lawyer's Diary" for a diary). (See generally Copinger at [3-16] and Laddie et al at [3.62].) It may be a grouping of words that convey, in themselves, the subject matter such that the expression was inseparable from the idea conveyed ("Help-Help-Driver-in-danger-Call-Police-Ph.000" in State of Victoria v Pacific Technologies (Australia) Pty Ltd (No 2) (2009) 177 FCR 61). In each case it was determined that the contended work did not justify claims of copyright protection, although the reasoning was not identical. In Lamb v Evans [1893] 1 Ch 218, the "headings" in which copyright was held to subsist were more than mere headlines. They included three translations and catch-words. At 232, Kay LJ said:
There is sufficient literary labour involved in the production of these headings to make them properly the subject of copyright.
That decision does not necessitate a finding of copyright in newspaper headlines generally.
42 The headlines in the AFR range 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'. While the use of devices such as puns and double entendres may be clever, evoke admiration and attract attention, the reasons for the denial of copyright protection to "works" that are simply too slight have long been invoked and have formed the basis for much judicial precedent. In some cases the headline represents no more than the fact or idea conveyed.
43 In Exxon Corporation v Exxon Insurance Consultants International Ltd [1982] Ch 119, protection for an invented word ("Exxon") was denied on the basis that, while the word was original and was created after considerable research and labour, it was not a "literary" work because it was not intended to afford information and instruction or pleasure in the form of literary enjoyment (referring to the definition of "literary work" in Hollinrake). A headline may come within the well-used criteria for a literary work as set out in Hollinrake but those criteria do not afford an exhaustive definition. They may well be necessary but they are not sufficient. Such criteria may well describe a literary work but the mere fact that a word or sequence of words provides information or pleasure is not necessarily sufficient to constitute a literary work for the purposes of the Act.
44 Headlines generally 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 (Cortis Exhaust Systems Pty Ltd v Kitten Software Pty Ltd (2001) ATPR 41-837 at [33] per Tamberlin J), even if skill and labour has been expended on creation (Exxon).
45 Copyright can only subsist in a "work". Originality does not require novelty, inventiveness or creativity, whether of thought or expression, or any form of literary merit. Any words written by an author, original in that sense and not copied, could be said to satisfy the "literary" part of a literary work for which copyright is claimed. Those words could well convey information and instruction (such as "go outside, the sun is shining") or pleasure (such as "you look beautiful"). However, not every piece of printing or writing which conveys information will be subject to copyright (IceTV at [45]). To obtain copyright protection under the Act, there must be a literary work. I appreciate that this has been the subject of much judicial consideration but I find it helpful to resort to dictionary definitions of "work". The Macquarie Dictionary relevantly defines "work" as 'that on which exertion or labour is expended; the product of exertion, labour, or activity: a work of art, literary or musical works'. There may well be writings of original words or phrases that simply do not reach the level of constituting a "work", regardless of literary merit. This is not just because they are short, as a deal of skill and effort can go into producing, for example, a line of exquisite poetry. It is because, on its face and in the absence of evidence justifying its description as a literary "work", the writing does not, qualitatively or quantitatively, justify that description. A headline is, generally, no more than a combination of common English words (Dicks v Yates at 88 per Jessel MR). It is 'does not involve literary composition, and is not sufficiently substantial to justify a claim to protection' (Francis Day at 122-123); it does not, in the words of Jacobson J in Sullivan at [112], have 'the requisite degree of judgment, effort and skill to make it an original literary work in which copyright may subsist' for the purposes of the Act.
46 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 (Francis Day at 123; see also Milwell v Olympic Amusements Pty Ltd (1999) 85 FCR 436 at [29]) but that is not the case here. Fairfax claims copyright in each and every one of the ten selected headlines. It claims copyright in the headlines as a class of work, based on 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 of the AFR. 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.
47 The majority of the headlines in the sample editions are short factual statements of the subject of the article. The addition of a pun does not, of itself, in the absence of evidence, convert such statements into literary works. As to the evidence adduced with respect to the Telstra Headline and the Health Headline, I accept Reed's submission that the evidence is not sufficient to "carry" the rest of the headlines. Further, Mr Bailey's evidence differentiates the work involved in the headlines of the front page from that for other headlines and demonstrates that the work involved in the Telstra Headline was primarily to ensure that the story was accurate, with the changing headline flowing from a changing appreciation of the facts. It is not the "ideas" of the author that is protected by copyright but their fixed expression (IceTV at [160]).
48 The headline and by-line is, as Reed says, meta-information about the work, not part of the work, the work being the article. 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. This was a matter of common ground between the witnesses. 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 (Alberto Culver v Andrea Dumon 466 F2d 705 (7th Cir 1972); Salinger v Random House Inc 811 F2d 90 (2d Cir 1987) at 98; CMM Cable Rep Inc v Ocean Coast Props Inc 97 F3d 1504 (1st Cir 1996) at 1520 n 21).
49 At IceTV at [161], Gummow, Hayne and Heydon JJ criticised the Full Court in Nine Network Australia Pty Ltd v IceTV (2008) 168 FCR 14 of tipping the balance too far against the interest of viewers in digital free to air television in the dissemination by means of new technology of programme listings in favour of the interest in the protection of Nine against perceived competition by IceTV. Their Honours noted at [163] a submission that no litigation alleging breach of confidence would have succeeded to protect Nine after the information reached the public domain and that the copyright litigation was an attempt to control the further dissemination of the information. This was discussed in the context of broadcasting information but it does raise a matter of possibly more general application. 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.
50 This does not exclude the possibility of establishing a basis for copyright protection of an individual headline but Fairfax has failed to prove that the ten selected headlines amount to literary works in which copyright can subsist.