Too short for protection – copyright, puns and joint authorship in - Fairfax Media Publications Pty Ltd v Reed International Books Australia Pty Ltd [2010] FCA 984

In the recent case of Fairfax Media Publications Pty Ltd v Reed International Books Australia Pty Ltd [2010] FCA 984, Her Honour Justice Bennett of the Federal Court considered which components of newspapers may be deemed to be ‘original literary works’ for the purposes of the Copyright Act 1968 (Cth) (Act).

In these proceedings Fairfax Media Publications Pty Ltd (Fairfax) submitted that there were four distinct components of a newspaper in which copyright arose:

  • headline of an article;

  • combination of a headline and an article;

  • compilation of all articles and editorials in the edition, arranged on pages as they will be published, but without advertising or other items (Article Compilation); and

  • final published edition of the newspaper (Edition Work).

Of the above, Her Honour found copyright subsisted, only with respect to the Article Compilation and Edition Work.

The Facts

Fairfax publishes the Australian Financial Review (AFR) in both paper and digital form. 

Reed International Books Australia Pty Ltd (Reed), which trades under the name ‘LexisNexis’ provides a service known as ‘ABIX’.  Through ABIX, Reed provides abstracts and citation information of articles published in a range of Australian newspapers, including the AFR.

Fairfax brought an action against Reed for copyright infringement.  The primary issue before the Court was whether or not the above components are original literary works of discrete joint authorship in which copyright subsists.

The Headlines

In considering whether newspaper headlines may be considered ‘original literary works’, Her Honour held that headlines are analogous to the title of other literary works and are insufficient to warrant copyright protection.  Her Honour stated that ‘headlines generally are, like titles, simply too insubstantial and too short to qualify for copyright protection as literary works’, and that the mere addition of a pun was not a sufficient display of skill and labour to warrant copyright protection of a headline.

Her Honour qualified the above by saying ‘this does not exclude the possibility of establishing a basis for copyright protection of an individual headline’, provided the headlines were created through the use of a sufficient amount of skill and labour.  Unfortunately however, Her Honour did not define the level of skill and labour required to satisfy this requirement.

While some of the headlines included mere factual summaries of the article, Her Honour snubbed her nose at such AFR gems as:

  • ‘Blackout probe sheds little light’; and

  • ‘Returns after tax will be simply super.’ 

These, according to Her Honour, are not literary works.  Her Honour, when discussing why headlines generally do not meet the requisite level of skill and labour, recognises that this is the case not simply because ‘they are short, as a great deal of effort can go into producing, for example, a line of exquisite poetry,’ (one might almost be forgiven for thinking that while a pun is not a literary work, a headline written in rhyming couplets may be).

The Article/Headline Combinations

Neither party disputed the claim that Article/Headline Combinations form an original literary work.  However Reed contested Fairfax’s claim that Article/Headline Combinations form a discrete work on the basis that they are created neither by a single author nor by way of joint-authorship.

Her Honour agreed with Reed’s submissions regarding joint authorship, stating that the evidence before her showed ‘that article writing is a process distinct from headline writing’, meaning that ‘the contribution of each author is separate from the contributions of the other author’.  Straightforward editing of articles for the purpose of inclusion on a page is not sufficient to attract joint authorship for copyright purposes.

These findings led Her Honour to conclude that the Article/Headline Combinations were not discrete works of joint-authorship, as the Article Headline Combination was not an original work but was rather constituted by the combination of an original work (the article) and a work in which copyright does not subsist, being the headline.  Accordingly, the Article/Headline Combination did not qualify for copyright protection.  

The Article Compilations and Edition Works

In contrast to her findings regarding the Article/Headline Combinations, Her Honour held both the Article Compilations and Edition Works are deemed to be original literary works of joint-authorship. 

Her Honour further held that these works were a result of joint-authorship, stating that they were ‘produced by a collaboration of a number of authors in which the contribution of each author is not separate from the contribution of other authors’.  These works attract copyright because the skill and labour required in compiling Article Compilations and Edition Works is sufficient to warrant copyright protection in the compilation, as opposed to the Headline/Article Combination.  However, as skill and labour is exerted in the act of compiling the works, copyright in the Article Compilation and Edition Work does not afford protection to components of the Article Compilation (although, it must be noted that if the components are original literary works in their own right, copyright may still subsist in these works independently).

Even though the Article Compilations and Edition Works were found to qualify for copyright protection, Her Honour held that Reed had not reproduced a substantial part of either work for the purposes of providing the ABIX service.  Accordingly, there had been no infringement of Fairfax’s copyright in either the article compilation or edition work.


Accordingly, Fairfox’s appeal was dismissed.

Her Honour’s determination has clarified three points of Australian copyright law with regards to the publications constituted by edited works of various authors:

  • newspaper headlines generally do not qualify for copyright protection unless there is a sufficient degree of skill and labour exercised in their creation (perhaps confirming the concept that puns are not products of sufficient skill and labour);

  • Article/Headline Combinations generally do not qualify for copyright protection owing to the fact that they are rarely considered to be discrete works created by way of joint-authorship; and

  • copyright subsists in Article Compilations and Edition Works as they are original literary works created by way of joint-authorship, on the basis sufficient skill and labour has been exerted in the compilation.  This position could vary in the event a computer program or other automated process became capable of primarily determining the layout of a paper.  However, for infringement of an Article Compilation or Edition Work to occur, a substantial part of the collaboration must have been reproduced in the infringing article.  

The case highlights the difficulty for publishers in enforcing copyright with respect to the collaboration and arrangement of works contained within a publication.  From this ruling, it is apparent that for copyright infringement in a compilation or arrangement to occur, a substantial portion of the arrangement or compilation must be reproduced. 

Notwithstanding the conclusions reached by Her Honour, caution should always be used when reproducing parts of arrangements or collaborations in which copyright may subsist.  If in doubt, we recommend you seek advice.  

If you have any queries please contact:
Wayne Zappia on 08 9288 6931 /

Disclaimer – the information contained in this publication does not constitute legal advice and should not be relied upon as such. You should seek legal advice in relation to any particular matter you may have before relying or acting on this information. The Lavan team are here to assist.