In Fairfax Media Publications Pty Ltd v Reed International Books Australia Pty Ltd [2010] FCA 984 the Federal Court of Australia decided that there was no copyright in the newspaper headlines in dispute and dismissed Fairfax’s allegation that Reed had breached its copyright by using Australian Financial Review headlines in its abstract service.

In deciding that none of the ten selected headlines are capable of being literary works in which copyright can subsist, no matter how clever, Judge Bennett said:

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. ..

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. … It is not the “ideas” of the author that is protected by copyright but their fixed expression (IceTV at [160]).

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.

Judge Bennett also decided that:

• Even if the Article/Headline Combination constituted a copyright work, Reed did not take a substantial part of such a work.
• Although it was not necessary to decide whether Reed was entitled to rely on the defences claimed, Reed’s conduct in reproducing and communicating the AFR headlines as part of the Abstracts is a fair dealing for the purpose of reporting news such that Reed’s conduct would not constitute an infringement of copyright by reason of s 42(1)(b) of the Act.

Coincidentally, Harvard Law has recently published a note on the US law regarding online aggregation. It gives a useful overview of the aggregation models and some helpful best practices which could apply in Australia:

1. Reproduce only those portions of the headline or article that are necessary to make your point or to identify the story. Do not reproduce the story in its entirety.

2. Try not to use all, or even the majority, of articles available from a single source. Limit yourself to those articles that are directly relevant to your audience.

3. Prominently identify the source of the article.

4. Whenever possible, link to the original source of the article.

5. When possible, provide context or commentary for the material you use.