Writing a pithy and funny headline — possibly with a clever pun or play on words — is a highly respected skill. Whole Fleet Street sub-editorial careers have been built on headlines such as ‘One’s Bum Year’ (to describe the Monarch’s annus horribilis speech) or ‘Stick it Up Your Junta’ (during the Falklands War).
But when it comes to online media, the need for content to be found by search engines means that headlines must be dull and literal — po-faced summaries of what the article says.
Now another blow to the sub-editorial ego — and even more importantly, to the nascent business models of all those who want to charge for content online, and thus prevent others from summarising and aggregating news offerings.
Yesterday the Federal Court found that, despite the skill involved, there is no copyright in headlines. The Court considered a sample of 10 headlines from The Australian Financial Review and concluded: “Headlines generally are, like titles, simply too insubstantial and too short to qualify for copyright protection as literary works.”
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The judgment is the first time anywhere in the world that a court has fully considered whether copyright is breached when newspaper articles are abstracted and aggregated. The implications are immense.
The judgment, which is wrapped up well on the the Mallesons’ website (Mallesons represented LexisNexis in the case), concerned a case between Fairfax Media and Reed Publication’s LexisNexis and ABIX news and information services, which provide abstracts of articles in newspapers and magazines, including the Financial Review.
Fairfax Media is considering an appeal against the ruling, as well it might.
The AFR online disappeared behind a paywall some years ago, in a move that is generally seen within the industry as an expensive failure. It costs $109 a month to subscribe to afr.com, which includes not only the newspaper but also a range of other services and market information.
Fairfax does not make subscriber numbers available, but it is generally believed that take up has been pitifully small and slow. Part of the business plan was that once services such as LexisNexis were prevented from selling abstracts the many business houses that rely on the content would instead see worth in signing up to the afr.com service.
But if the judgment stands, LexisNexis and other services will be free to continue providing abstracts and headlines of the articles. And so will any blogger or news aggregation service that wishes to do so.
In a brief statement issued yesterday, AFR chief executive Michael Gill said he was disappointed in the decision and that it was not consistent with what was needed to protect intellectual property in a digital media environment.
This morning Fairfax Group Executive Editor Phil McLean would not be drawn further on what would happen if the judgment stood. Doubtless, Rupert and others will be watching.