In the case of Newspaper Licensing Agency v Meltwater , the English Court of Appeal has upheld a decision of the High Court confirming that copyright can subsist in news headlines.
Separately, the Court held that reproduction of a headline together with an extract of the news article in a hyperlink can be sufficient to infringe the copyright in the full article.
The Facts
The Newspaper Licensing Agency (NLA) is an organisation that acts for various newspaper groups to licence their content to various online news organisations and websites.
Meltwater News UK uses software to collect news stories from around the world based on a client's selected key words. It then sends an email to its client containing the headline of the article, the opening words after the headline and an extract with the context in which the client's key words appear in the article - all to a maximum of 256 characters. The email also contains a hyperlink to the full article.
In this way, the Meltwater service directs its clients to material owned by the publishers for whom NLA acted on behalf of. NLA brought legal proceedings against Meltwater for copyright infringement following Meltwater's refusal to concede that it required a licence from NLA for its activities. NLA contended Meltwater's clients also needed a licence as copies of the headlines and extracts were made on each of the end users computers and this (NLA contended) constituted a separate infringement by each end user (in addition to infringement by Meltwater).
The High Court found in favour of the NLA, holding that both Meltwater and its clients required an NLA licence. The decision was appealed to the Court of Appeal.
There were two primary questions to be answered by the Court of Appeal:-
- Can copyright exist in headlines alone (separate from the article to which they relate)?; and
- Can the copyright of an article be infringed by the copying of the headline and an extract of the article of not more than 256 characters?
The Court of Appeal Decision
Question 1)
This is a matter of copyright subsistence. Copyright subsists in "original" literary works. The Courts have held previously held that individual words alone do not have a sufficient degree of literary quality to attract copyright protection. The court was faced with the question then as to whether a string of words - a headline, is sufficient in order to be a qualifying "literary" work under the copyright legislation.
The Court Held that:-
- Copyright can exist in news headlines alone, separate from the copyright that exists in the article to which they relate. Therefore copying a headline alone can amount to infringement of copyright in that headline.
- The existence of copyright in the headline reflects the skill and labour exerted in their creation. A news headline is often "striking and substantial" and may contain "some emotional sentimental hook. It may contain a pun" and therefore it may be worthy of being an original literary works. Headlines are also often produced by an editor that is separate from the author of the article itself, indicating that it may be a literary work separate from the article.
Question 2)
The second question is a matter of copyright infringement. The test of infringement is whether the secondary work (i.e. the extract) reproduces or copies the whole or a substantial part of the original work. The Courts have frequently said that the question of whether a "substantial part" has been copied is a question of the quality of the part taken, rather than quantity.
In the case of Infopaq2 the European Court of Justice said that this test involves assessing whether the copied elements could be said to contain the "intellectual expression" of the author of the original work. The UK courts have said that this is not a new test, but rather a different way of expressing the already well established test for copyright infringement (the "substantial part" test).
The Court Held the following:-
- Copying an extract from a news article can infringe the copyright in the full article in certain circumstances. The copying may only amount to only a small portion of the article, but the extract can still nonetheless infringe if the elements taken are the "expression of the intellectual creation of the author of the article as a whole".
- A hyperlink to an article may infringe if the hyperlink contains either the headline or an extract of the article.
- The Defendant put forward a number of defences relating to fair dealing, including the limited defence to copyright infringement of "reporting current events". However the Court rejected these on the basis that Meltwater were not doing any "reporting", but rather simply disseminating the information to its clients.
- The Court stressed that it had not looked at every headline extract used to decide whether Meltwater had infringed or not, but rather the Court took the view that the service Meltwater provided was likely copyright to infringe on a regular basis and therefore the activity required a licence.
Commentary
The Court of Appeal Decision (and the original High Court Decision) follows the important Infopaq decision by the European Court of Justice. Here it was found that an automated service that "scraped" extracts of 11 words from online articles and disseminated them to its customers could infringe the copyright in those articles, where "the expression of the intellectual creation of the author" has been reproduced in the extract.
Quoting the Infopaq case and using the same reasoning, the English Court said that Meltwater would be infringing NLA's copyright in the articles because a headline and an extract could together "provide the end user with as clear an idea as possible of the subject-matter and content of the article". This reasoning can also be seen to equate to the more traditional UK test of copyright infringement that provides that there will be infringement if a "substantial part" of the original work has been copied.
Headlines
While the courts have found that there copyright can subsist in news headlines, this decision should not be understood to mean that all headlines will attract copyright protection and can be protected. The Court of Appeal stressed that that is a much stronger chance of the court finding copyright to subsist in a headline where there is sufficient ingenuity in the work and where there has been an independent skill and labour exerted in its creation. On the other hand, a bland and non creative headline will most likely not be protectable as a copyright works, having very little creative element to it.
Hyperlinks
Hyperlinks were discussed by the Court of Appeal because the Meltwater service emailed its client with a headline and extract of an article, which also acted as a hyperlink to the full article. The court found that the hyperlink was capable of infringing copyright because it was not simply a link containing the URL, but it also contained the headline and/or an extract of the copyright work.
This author's reading of the judge's opinion is that not all hyperlinks to copyright works will infringe. It is likely that a hyperlink will only infringe where the link contains more than is necessary to achieve the aim of providing a link to the work - for example, where a large or important part of the work (such as the fist paragraph) is copied into the link.
The decision is not clear as to whether a hyperlink which contains a headline alone (without an extract) will infringe copyright in the headline. If this is the effect, then this would have a severely detrimental effect on the way in which the web operates, as it would restrict linking to any news article where the headline is contained in the link. It is difficult to imagine that this was the effect that the judge intended.
Nonetheless, caution would be advised where particularly creative headlines are being used in hyperlinks. This is especially true when the reason for doing so is to promote or engage in a commercial activity, as was the case in the Meltwater, as copyright owners are more likely to enforce their rights when another party is making a gain from their propriety material.
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