Brent Randall is a JD candidate at the University of Ottawa.
England and Wales Court of Appeal ruled on July 27, 2011 that headlines are capable “of being literary works independent of the article to which they relate” and that using article extracts without the author’s permission could constitute copyright infringement of the work.
The Newspaper Licensing Agency (NLA) as a whole, along with six publishers of national newspapers in the UK brought a claim against Meltwater Holdings, which operates a commercial media monitoring organization called Meltwater News, as well as Public Relations Consultants Association Limited (PRCA). The NLA, in its work as manager of IP rights of its member newspapers, claimed that Meltwater and PRCA used their members’ websites without proper licensing. Meltwater argued that it did not require such license to carry on its business, and furthermore, that the terms of the license were unreasonable.
In November 2010, the case was heard before the High Court of Justice, with Mrs. Justice Proudman finding in favour of the NLA and its members. Justice Proudman affirmed that, “[t]o the extent that the headlines are…joint enterprises with the articles and part and parcel of those articles, the distinction is one without a difference…I find that some of the headlines are independent literary works; those that are not from part of the articles to which they relate.”
The Chancellor of the High Court penned the Court of Appeal’s reasons and agreed with Justice Proudman’s decision. The Chancellor stated that the capability of newspaper headlines to be original literary works is “plainly correct” since they are clearly literary and he felt they met the rather low threshold necessary for finding originality. On whether extracts would be a “substantial part” of the work, the taking of which would constitute infringement (as in section 3 of Canada’s Copyright Act), the Chancellor said: “depending on the search term…a large number of extracts are taken…in some cases from the same article. [T]he conduct of the business of Meltwater is such as, on a balance of probability, likely from time to time to cause its clients, prima facie, to infringe the copyright of the Publishers…”
Two issues immediately arise from this decision. First, although both Justice Proudman and the Chancellor noted the rarity of an instance where a headline alone could be protected by copyright, the possibility still appears to be stronger than ever before. In Francis Day and Hunter Ltd. v. Twentieth Century Fox Corporation Ltd., the Privy Council found that the defendants using the same title as the plaintiff’s song for an unrelated movie did not constitute infringement of their performance rights. While Francis Day did not completely shut the door on copyrighting titles, similar to how the Court of Appeal treated headlines, the possibility of doing so would be very rare. Protection seems more likely if the title can be registered as a trade-mark, but this recent decision of the Court of Appeal may introduce some uncertainty. There are many similarities between titles and headlines, if they are used in the traditional manner to describe the content of a movie, song, article, or other work. However, when titles and headlines introduce puns, allusions, alliteration, and other writing devices that are arguably “more creative” and express more than just a summary of the contents of the work, the case may be a bit stronger for copyright protection.
Second, there are concerns about what this decision may mean for those who browse the Internet for news articles. One commentator wonders whether millions of web users are now copyright offenders, as it would be unrealistic to think every source of news on the Internet is licensed by an organization like the NLA. This apparent need for licensing of news providers has been construed as a threat to users’ ability to utilize the Internet freely. As Jorn Lyseggen, CEO of Meltwater states, “[t]he ability to browse without fear of infringing copyright is a fundamental Internet principle.” As to whether or not Internet users would in fact be infringing copyright, rights holders in these situations will need to consider the ability to effectively enforce their rights in the digital age.
According to PRCA’s website, both Meltwater and PRCA will be seeking permission to appeal the decision to the UK Supreme Court.