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Headlines and extracts are protected by copyright

6 December 2010

The High Court has held that news headlines are protected by copyright, and short text extracts of only 11 words could also be protected.

Mrs Justice Proudman was ruling in a test case brought by the Newspaper Licensing Agency (NLA), backed by most of the national newspaper groups, against a media monitoring service, supported by the Public Relations Consultants Association.

The court heard that the “proliferation of online media monitoring services” had persuaded the NLA to create two new licensing schemes, one for monitoring services and the other for their users.

However, Meltwater News, the service involved in this case, did not have a license and argued that it did not need one because its activities did not infringe copyright.

Giving judgment in Newspaper Licensing Authority and others v Meltwater Holding BV and others [2010] EWHC 3099 (Ch), Proudman J said Meltwater monitored a wide range of websites using ‘spider’ programs to ‘scrape’ the content.

Meltwater customers would enter their search terms, and receive a monitoring report containing details of every article containing the terms published in a defined period.

Mrs Justice Proudman said the report contained a hyperlink to the article, made up of the headline, the opening words of the article and the extract containing the search terms.

She said that nobody disputed that copyright subsisted in the full articles. The issues were whether a newspaper headline could be considered to be a “free-standing, original literary work” and whether a very brief extract could constitute a “substantial part” of a literary work.

The court heard evidence from James Bromley, chief operating officer of Associated Newspapers, who said that headlines were usually written by specialist editorial staff and the ability to compose a headline was “a valuable and discrete skill”.

Counsel for the PR consultants argued that the headline and article were a “single, composite work” and that many headlines simply reflected the article’s content and contained “short, banal content”.

Proudman J ruled that headlines were “capable of being literary works” whether independently or part of articles. She said that some of the headlines at issue were literary works, and others were merely part of the articles.

She held that a single word was too short a term to convey the quality of originality, but a mere 11-word extract may be enough provided it “includes an expression of the intellectual creation of the author”.

Proudman J based her findings on the ruling of the European Court of Justice in Infopaq International v Danske Dagblades Forening [2010] FSR 495, the leading case on article 5 of the Information Society Directive (directive 2001/29/EC).

She said she could not decide whether “all or even any” of the individual examples of text extracts at issue in the case were the “intellectual creation” of their authors.

“However, I have no doubt that in many (though not all) cases the text extracts, even leaving aside the headline, do contain elements which are the expression of the intellectual creation of the author of the article as a whole.”

Mrs Justice Proudman ruled that, since clients of Meltwater News had failed to obtain a licence, they had infringed the publishers’ copyright.

Simon Clark, head of intellectual property at Berwin Leighton Paisner, acted for the NLA and the national newspaper groups, including the publishers of The Guardian, The Daily Telegraph, The Independent, the Daily Mail, the Daily Express and the Daily Mirror.

“This decision is significant for the publishing industry,” Clark said. “Firstly, it confirms that copyright can subsist in a newspaper headline.

“Secondly, a company which pays for an online media monitoring service requires a licence from the newspapers or the NLA to click on a link to an article on the newspaper’s website or to receive text extracts taken from an article.”

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