On 26 November the UK court found that newspaper headlines were capable of being protected by copyright law as literary works: The Newspaper Licensing Agency Ltd & Ors v Meltwater Holding BV & Ors [2010] EWHC 3099. This finding is in stark contrast with the Australian position, where in the recent case of Fairfax Media Publications Pty Limited v Reed International Books Australia Pty Limited [2010] FCA 984, the Federal Court of Australia concluded that the headlines were “simply too insubstantial and too short to qualify for copyright protection as literary works.”

While the UK court found the Australian case to be “persuasive as a historical analysis of the law“, it was bound to distinguish for the following reasons.

The Information Society Directive 2001/29/EC provides that Member States must provide for the exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part, of relevant works.

In Infopaq International v. Danske Dagblades Forening [2010] FSR 495, a case not directly concerned with headlines but with the status of text extracts from newspaper articles, the European Court of Justice (ECJ) held that this Directive was to be given broad interpretation. The ECJ was, therefore, of the opinion that “[t]he possibility may not be ruled out that certain isolated sentences, or even certain parts of sentences in the text in question, may be suitable for copyright protection.”

ECJ made no distinction between works or parts of works. Therefore, the test of “substantiality” adopted by Bennett J in Fairfax was not the test to be applied in the EU. There, the originality test applies or, in other words, what matters is the elements which are the expression of the intellectual creation of the author.

Given that domestic legislation must be construed in conformity with, and so as to achieve the result intended by, EU Directives and also taking into account the binding effect of the ECJ judgments on domestic courts, the UK Court found that newspaper headlines were capable of being protected by copyright.

For any queries in relation to copyright law please contact Adam Simpson.