As previously reported in the case of Newspaper Licensing Authority & Ors v Meltwater Holding BV & Ors  EWHC 3099, the High Court of Chancery has held that copyright applies to news headlines.
Contrary to long established Australian and English authority, Justice Proudman has ruled that news headlines are capable of qualifying as original literary works under s3(1) of the Copyright, Designs and Patents Act 1988. The common law definition of what an original literary work is can be found in long established case law dating back to the 19th century. There is a long list of case law defining what will amount to a literary work and it is clear that literary doesn’t necessary imply literary merit.
Despite the relatively low threshold required for establishing a work meets this definition, there is a long list of case law supporting the fact that certain kinds of works cannot be copyrighted. In the NLA case, Counsel for the Defendants relied on this line of case law.
Francis Day & Hunter Limited v. Twentieth Century Fox Corp Limited  AC 112, Ladbroke v. William Hill, Exxon Corporation v. Exxon Insurance Consultants International Limited  Ch 119, Shetland Times v Dr Jonathan Wills  ESR 604, IceTV Pty Limited v. Nine Network Australia Pty Limited (2009) 239 CLR 458 , including the recent decision of Bennett J in the recent Federal Court of Australia decision in Fairfax Media Publications Pty Limited v. Reed International Books Australia Pty Limited  FCA 984.
The Judge characterised the recent Australian Fairfax decision as the only precedent to squarely address the status in copyright law of a headline in a newspaper, a fairly myopic view.
The Judge acknowledged that under previous case law, slogans, titles and headlines had consistently been refused protection due to both a lack of originality and insubstantiality, citing examples such as ‘Splendid Misery‘ in Dick v. Yates, and ‘the Lawyer’s Diary’ in Rose v. Information Services Limited  FSR 254.
The Judge remarked that in her opinion some of the copyright works in other cases were denied protection not due to lack of sufficient originality but because the works in question were too short. (citing ‘Opportunity Knocks‘, ‘Dr Martens‘, ‘Exxon‘ and, notably, ‘the Man Who Broke the Bank at Monte Carlo‘)
The analysis of Justice Proudman appears here
She claimed that Bennett’s J decision was based on public policy decisions, and further claimed that unlike her, Bennett J wasn’t bound by European Copyright Law as she was.
She stated that she believed this line of cases had been overtaken by the European Court of Justice’s (ECJ) decision in Infopaq International v. Danske Dagblades Forening  FSR 495. In Infopaq, the ECJ held that the reproduction of an 11 word extract from a newspaper article was capable of amounting to copying if those words are “the expression of the intellectual creation of their author“.
The Judge also dismissed the fair dealing defence raised by the Defendants and held them to be in violation of the Claimant’s database rights.
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