by Kim Weatherall
So you have some kind of maybe-copyright-protected-work. It’s, say, a magazine or a newspaper or something. Someone copies bits. You want to sue, because you want to stop them. You go to a lawyer. And they tell you:
- That where you might have thought you have a newspaper, all of the bits of which are valuable for their own reasons, but, you know, it’s a newspaper, in fact the lawyers will have to play a kind of Russian-doll game to work out what ‘copyright-protected works’ exist: everything from, perhaps, individual headlines to a compilation – that no one ever sees of course – of the articles abstracted from all the advertising and photographic material; and
- Oh, by the way, to prove your copyright you must have lawyers and experts traipsing through your office watching every move of your editors, sub-editors, journalists and tea-ladies (or tea-blokes) so that the intellectual efforts of their activities can be traced, described, and set out in affidavits. (Oh, and then, when you’ve done all that, the other side will argue that the evidence isn’t representative and doesn’t prove anything because of the lawyers being there, how’s that for cute?)
- Oh, and you’ll need to pick an edition, articles, and headlines where the actual human beings who wrote them can depose to the process they went through in putting together that particular edition and those particular headlines.
Counter-intuitive? Maybe? No bones about it, actually. We’re in a bit of a mess. We meaning ‘the copyright-erati’ of Australia. There’s a lot that I think is right about the decision in Fairfax Media Publications Pty Ltd v Reed International Books Australia Pty Ltd  FCA 984. But it is worthwhile taking a little step back and asking yourself: does this process of proof, and this process of reasoning, make any sense at all? If not, how did we end up here? Hold those thoughts.
I don’t need to summarise the case here. Google the case name and you’ll find several very good and succinct summaries produced by various law firms. In short, we have a company (Reed) that is making money by (as part of a larger news type service) providing to subscribers the Australian Financial Review headlines and short abstracts of the articles (well, 40-60% of them anyway). Fairfax not happy. Fairfax sue. They claim copyright in:
1. Each individual headline;
2. Each Article including its headline;
3. The compilation of Articles in each edition (sans advertising and photograph materials – that is, just the article texts with headlines); and
4. The compilation being the whole of each Edition.
So they have to show copyright in each of these, and, if there is subsistence, infringement.
Copyright in headlines: is a headline a copyright work?
Here is where I think it is fair to say that the court clearly got the answer right. Headlines are not copyright works, and so the court concluded (actually, the court was a little more cagey than that. At paragraph 50 her Honour Justice Bennett notes that ‘this does not exclude the possibility of establishing a basis for copyright protection of an individual headline’. The courts always make that statement in these cases and as a result, people will keep arguing that their particular title, headline, or whatever is so very original it should be protected. It’s a shame really).
Her Honour’s finding here is clearly consistent with a very long line of authority in which common law courts have consistently refused to recognise copyright in single words, titles, and short phrases: think Dick v Yates (1881); Francis Day & Hunter v Twentieth Century Fox (1940), or, more recently, State of Victoria v Pacific Technologies (Australia). Like the judgments in those various cases, Justice Bennett’s judgement shows perhaps a little discomfort in finding a reason to exclude the headlines (well, either that or just wants to be very comprehensive) – and so throws every possible argument at it. So we know that the headlines in the case were not copyright works because:
- There are very good public policy reasons dictating otherwise. Not least, newspaper headlines are titles and every Tom, Dick and Harry (and every reference or bibliographic resource) who wants to refer to the newspaper article needs, as a matter of course, to reproduce the headline. It would be really inconvenient if that turned into copyright infringement. Um, yes, yes it would.
- The headlines were not sufficiently ‘original’. Adding clever puns isn’t enough.
- The expression embodied in the headlines was, a bit like the phrases in State of Victoria, a bit too close to the ‘idea’ in the headlines;
- They are just too insubstantial and too short to qualify for copyright protection. Not every piece of printing or writing that conveys information can be subject to copyright.
Number 4 seems to be the reason on which her Honour puts the most emphasis, followed by the sheer inconvenience of finding otherwise. That’s helpful, I think, and correct. “Too insubstantial” is the kind of reason that is hard to overcome with ever-more-extensive evidence about the amount of work/work/inventiveness that goes into generating a phrase/title/headline. And relying on the merger of idea and expression, as per State of Victoria, is also a little tricky beyond the facts of that particular case. You can (outside those special facts) usually find other words to express something.
So, all in all, this is a good bit of judgment.
Is the compilation of articles (without ads and without photographs) a literary work?
Justice Bennett says yes, rejecting Reed’s argument that it is a ‘hypothetical work’ since it never actually exists or is sold to the public like that. It’s kind of hard to argue with this assertion. We don’t have a lot of well-established principles for working out whether there is ‘a work’ or not or finding the parameters of a work in copyright (if you’re interested, one of the better discussions of this I’ve seen was Mike Handler’s article on Broadcast copyright in the Sydney Law Review). But again, like the failure to simply ‘rule out’ headlines as ever being works, this kind of reasoning has the unfortunate result of encouraging a Russian-Dolls type dissection of a product into ever-smaller-and-less-coherent ‘bits’. This has to lengthen pleadings and complicate copyright arguments. It’s a shame. But by the same token I don’t see a clear way to avoid this (note to self – think about that sometime).
Is an article together with its headline a copyright work?
Here’s where it all gets a bit more dicey. The question here is whether it’s right to see an ‘article together with its headline’ as a copyright work. In a post-IceTV world, you have to be able to identify authorship to find copyright. So the article with headline has to either be a work of authorship, or a work of joint authorship. Problem: mostly, it seems, journalists don’t write headlines (headline-writing being a special skill, as quite extensive evidence sought to prove). So ‘headline plus article’ isn’t a work of authorship.
Anyway: is it joint authorship? Well, that’s kinda awkward too, because for one thing, the journalist’s name is on the by-line (which is a bit weird if they’re only a joint author, perhaps).
But at a more fundamental level, you have a problem that editors edit, and the practice has been to see editing as a distinct function not conferring joint authorship. This may or may not be fair: there’s been plenty of recognition that there are cases where the existence of a good editor has made great writing, in particular, possible – taken undigested genius and turned into something that the rest of us can hold sufficiently in our head to enjoy. But despite whatever evidence might be thrown at the question, I suspect it would be quite hard for a court to turn around and hold an unattributed editor as a joint author. Thus Justice Bennett states affirmatively (paragraph 94) that “straightforward editing of articles for the purpose of inclusion on a page, which may or may not involve substantial changes to the article, is not enough to attract joint authorship for copyright purposes.” Later (paragraph 97) she says that ‘sub-editors edit in the traditional sense, in a manner insufficient to make them joint authors’.
This is interesting when you think about it. First, her Honour clearly has in her mind a picture (a ‘traditional’ one, a ‘straightforward’ one) where editing is not joint authorship. I wonder though. Does this depend on job title? A separation of tasks in time? Would it be different if, say, the sub-editor had come up with the story idea in the first place (so had some more intellectual input into forming the article, if not its text?) In short, I don’t know if I know what ‘straightforward’ editing is, really. I have to say, too, that this reasoning, while logical, and consistent with what we’ve seen emerge post-IceTV as copyright’s unrelenting focus on human authorship, is going to cause plenty of headaches for people involved in collaborative creation. Think about it. IceTV (at least the Gummow et al judgment) seemed to put a great deal of focus on the author needing to be the person putting ‘pen to paper’ (or fingers to keyboard, so to speak). This looked like a shift away from the Cala Homes reasoning which allows for significant intellectual contributors to be authors. Now Justice Bennett tells us that fingers to keyboard isn’t always going to be enough – even if you’re taking out or putting back in large amounts of text while preserving the gist of the story (which I would have thought was reasonably intellectual). And of course Phone Directories has already told us that fingers to keyboard isn’t enough if you’re too rule-bound. I don’t know about you, but I’m having more and more trouble working out who is an author, unless it’s in the truly traditional kinds of literary and artistic creation.
In a sense, her Honour avoids getting into the guts of these questions by saying there isn’t the evidence of the actual collaboration process on the actual articles in question in the case: about, say, the extent of re-writing of those articles, or the level of involvement by a given editor (did the same person re-write and contribute the headline?). But that just brings me back to what I started with in this comment: where are we at, in copyright, when you have to try to get that kind of evidence? How realistic is it to expect that journalists who work on different articles every day will remember the particular process of collaboration leading to a particular article?
I would not want to be litigating these issues now. Can’t wait to see what the Full Federal Court makes of it all.
But wait! There’s more! Having found no copyright in headlines, or in Articles including headlines, Reed’s abstracting service raises some really interesting questions about whether they have taken a ‘substantial part’ of the overall Article or Edition compilation. Her Honour found the answer to that was no, and a key part of the thinking here seems to be that compiling is compiling, and headline-writing is headline-writing, and if you’re claiming copyright for your compiling, you can’t claim for your headlines. This ensures that you can’t get ‘greater protection for an element of the compilation’ via compilation copyright than you get for the thing (the headline) on its own.
I can see the argument. But I wonder if it’s right to separate out the writing and the compiling here, and what the implications are for future legal arguments.
Can you really separate the two? If the headlines are written and re-written in the course of putting the whole thing together, and are written so as to work in sympathy with all the other headlines and content, is it right to say the writing of the headlines is a separate act? Could be regarded as artificial, I think. I’ll have to think about that some more.
Also, if you adopt this line, how, as a lawyer, would you plead the next case? Well, you’re going to have to do what Fairfax has done here, aren’t you? Identify a series of ever-more-specific works capturing the particular creativity that you say the other side has taken, because looking at the whole (compilation) won’t help you.
I’m going to have to think about this substantial part analysis more. But there is something about it that is making me uncomfortable. It’s logical. But, in a preliminary way, I think what is bothering me is that it is a kind of twisted, torturous copyright logic, not a real human being logic (and yes, I know, this is a case. But when logic strays too far from lay sense, you should be asking yourself why). On this analysis, the headlines just … disappear. They’re not works. They’re not part of articles. They’re not part of the compilation. They’re … invisible to copyright altogether. I wonder about that.
The final section of the judgment addresses fair dealing – finding this is fair dealing for the reporting of news. This post is already too long, so I’ll just say: how far have we come, that competition and substitution was so important in The Panel and so unimportant in this case.
This is a wonderfully interesting, mind-bending kind of judgment to read. I’m sure I’ll have more to say at some point. I should emphasise, perhaps, that I think the outcome is probably correct. Headlines shouldn’t be protected. News should be able to be reported. But aside from those ‘headline points’ (sorry), there remains… much to ponder.
Kimberlee Weatherall is a Senior Lecturer at the University of Queensland
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