UK High Court finds copyright in newspaper headlines; Fairfax distinguished

UK High Court finds copyright in newspaper headlines; Fairfax distinguished

UK High Court finds copyright in newspaper headlines; Fairfax distinguished

Newspaper Licensing Agency Ltd and others v Meltwater Holding BV and others1

In a decision with strikingly similar facts yet markedly different findings to September’s Federal Court decision of Fairfax Media Publications Pty Ltd v Reed International Books Australia Pty Ltd2, the UK High Court has ruled that newspaper headlines are capable of copyright protection and that users of online media-monitoring services will infringe the copyright of newspaper publishers unless they obtain an appropriate licence.

The key question: does use of a media monitoring service infringe copyright?

The Newspaper Licensing Agency (‘the NLA’) and a number of UK newspapers brought an action against the online media monitor Meltwater News UK Limited, as well as its Dutch parent company (collectively referred to as ‘Meltwater’). The Public Relations Consultants Association Limited (‘PRCA’), an association representing many of Meltwater’s users, was the third defendant in the proceedings.

Meltwater indexes the content of newspaper websites each day to provide email alerts of articles matching search terms entered by its users. These “Meltwater News” alerts contain the headline and first 256 characters of matched articles, as well as a link to the full text of the article on the newspaper website. Meltwater News users, many of them public relations agencies, often forwarded these headline links on to their own clients.

Meltwater had already entered into a licence agreement with the NLA so that it could use articles copied from its websites of NLA members. The key issue at trial was therefore whether end users of Meltwater News infringed copyright by their use of the service, and as a result required their own additional licences from the NLA.

Are newspaper headlines copyright works?

Justice Proudman quoted extensively from Justice Bennett’s findings in Fairfax, which had been submitted by the PRCA in support of its defence. In Fairfax, Justice Bennett had found, among other things, that:

  1. headlines are, as a class, “too insubstantial” to qualify as a literary work in which copyright might subsist,
  2. there are significant public policy reasons for refusing copyright protection for headlines; and
  3. evidence is crucial in determining authorship and originality.

Although Justice Proudman noted the direct relevance of Fairfax, Her Honour was bound to apply the decision of the European Court of Justice in Infopaq International A/S v Danske Dagblades Forening3 which had previously held that even short sentences or eleven words extracted from newspaper articles are protected so long as they are an “expression of the intellectual creation of the author”.4 As a result, Justice Poudman found that the newspaper headlines in question were either independent literary works, or literary works in combination with the articles to which they relate.

The fair dealing defence for news reporting

The UK decision also diverges from the Federal Court’s comments (albeit as obiter) on the question of fair dealing for reporting the news. In Fairfax, Justice Bennett had suggested that media monitors could rely on such a defence under the Australian Copyright Act5 when compiling newspaper summaries6. However Justice Proudman found it ‘tortuous’7 to suggest that receipt of Meltwater News alerts or the forwarding of those alerts by Meltwater users onto their own clients was ‘reporting current events’ for the purposes of a similar defence under the UK Copyright Designs and Patents Act 19888. Her Honour noted that the defence was intended to protect the media in reporting news to the public, and emphasised that ‘Meltwater News is not intended for public consumption; it is tailored … to particular End User’s for their client’s consumption’9.

Other fair dealing defences and findings

Justice Proudman made a number of other notable findings:

  • The receipt of a Meltwater News email alert containing infringing material—an act which necessitates the storage of the email message on a user’s computer—is a reproduction for the purposes of the Copyright Patents and Designs Act 1988 (UK).
  • The defence of ‘temporary copying’10 cannot apply to reproductions of copyright material made by users in the course of receiving Meltwater News alerts or by clicking on links contained within those emails. Her Honour found that the basic requirements of the temporary copying defence set out in Infopaq had not been met; in particular Meltwater News alerts are not an integral part of a technological process and have independent economic significance.
  • Meltwater users cannot rely upon the defence of fair dealing for the purposes of criticism or review, as they do not apply their critical faculties at all to the infringing material.11
  • Meltwater’s licensing of newspaper content does not provide an implied licence to the users of its service to also reproduce the newspaper headlines and extracts.

As a result of these findings, Justice Proudman found that Meltwater News users infringed newspaper publishers’ copyright in their use and receipt of the email alerts and would therefore require a separate licence from NLA in order to use the service without infringing.

Commentary and implications

This decision is the first time a UK court has considered whether copyright subsists in headlines. It also highlights the extent to which UK copyright law is now shaped by European jurisprudence, as well as its increasing divergence from Australian copyright law. Significantly, the issue of authorship, which proved pivotal to Justice Bennett’s findings in Fairfax and has been a focus of Australian copyright cases since IceTV v Nine Network Australia12, was not a critical part of the UK High Court’s judgment.

Following this decision, the UK Copyright Tribunal will meet next year to review whether the terms of the NLA’s web licences for media monitors are fair. Amid the continued legal wrangling between producers and aggregators of online content, the next chapter will be no doubt be watched with great interest from both sides of the equator.

Endnotes

  1. [2010] EWHC 3099 (Ch) (‘NLA v Meltwater BV’).
  2. [2010] FCA 984 (‘Fairfax’).
  3. (C-5/08). (‘Infopaq’).
  4. Ibid, at [39].
  5. Copyright Act 1968 (Cth), s 42.
  6. Fairfax, above n 2, at [144].
  7. NLA v Meltwater BV, above n 1, at [129].
  8. Section 30(2).
  9. NLA v Meltwater BV, above n 1, at [129].
  10. Copyright Patents and Designs Act 1988 (UK), s 28A.
  11. NLA v Meltwater BV, above n 1, at [127].
  12. [2009] HCA 14.