Fairfax, as the publisher of The Australian Financial Review (AFR )[published in paper form to the general public and electronically in digital form to subscribers in Australia and elsewhere], alleges that Reed - publisher of the ABIX abstracting service - has infringed Fairfax's copyright in AFR headlines.
Reed's ABIX involves the provision to subscribers of abstracts of articles published in various newspapers and magazines, including AFR articles. Those abstracts include the headline of each article (typically without alteration), the by-line of the journalist who wrote the article and a short summary of the article written by a Reed employee. Typically, abstracts of around 40 to 60% of the articles in each edition of the AFR are provided early on the same day as the relevant edition.
Bennett J commented that -
It is important to appreciate that the appearance of the Abstract is not the same as the appearance of the original article as published in the AFR. Further, while the Abstract does include the headline and by-line of the corresponding article, the ABIX service does not reproduce the advertisements, the photographs or the quotes from the articles which appear in the AFR. The arrangement of the Abstracts within the ABIX service as presented to subscribers is not the same as the arrangement of those articles in the AFR. Nor do the headlines appear in the same order as they appear in the AFR. However, Fairfax argues that the Reed database reproduces the arrangement of the articles and headlines in the AFR. Fairfax alleges that, by reason of the provision of such Abstracts as part of the ABIX service, Reed has infringed its copyright in a number of different works comprised in each edition of the AFR. Fairfax contends that each of the following (the contended works) are original literary works in which copyright subsists pursuant to the Copyright Act 1968 (Cth) (... and that Reed takes the whole or a substantial part of each of these works in preparation of the Abstracts: 1. Each individual headline in an AFR edition 2. Each article, including its headline and by-line, written by journalists employed by Fairfax and published in an AFR edition (Article/Headline Combination) 3. The compilation consisting of all of the articles, including their headlines and by-lines, in an AFR edition (Article Compilation) 4. Each entire edition of the AFR (Edition Work)Reed denied any infringement, arguing that none of the contended works, other than the Edition Work, is capable of being a work within the meaning of the Act or is a work in which copyright has been proven to subsist, and that even if copyright subsists in each of the contended works, the Abstracts do not reproduce a substantial part of any contended work, other than the individual headline. Reed also raised defences of fair dealing for the purpose of reporting news under s 42 of the Act and the defence of estoppel. Bennett indicated that
The primary issues in dispute are: 1. whether copyright subsists in any of the contended works pursuant to the Act: • Is each of the contended works a “work”? • Is each of the contended works an original work? 2. whether, in the preparation of the Abstracts, Reed takes the whole or a substantial part of any of those works in which copyright subsistsHe concluded that -
- None of the ten selected headlines are capable of being literary works in which copyright can subsist.
- Fairfax has failed to prove that any of the ten selected Article/Headline Combination is a discrete work of joint authorship in which copyright can subsist.
- Copyright subsists in the Article Compilation and the Edition Work in each of the June and November editions as original literary works and this copyright is owned by Fairfax.
- Reed takes the whole of each headline. As to whether Reed, in reproducing and communicating headlines of the AFR as part of the Abstracts, takes a substantial part of any of the contended works:
- Even if the Article/Headline Combination constitutes a copyright work, Reed does not take a substantial part of such a work.
- Reed does not take a substantial part of either the Article Compilation or the Edition Work.
- Although it is not necessary to decide whether Reed is entitled to rely on the defences claimed, I nonetheless consider that:
- Reed’s conduct in reproducing and communicating the AFR headlines as part of the Abstracts is a fair dealing for the purpose of reporting news such that Reed’s conduct would not constitute an infringement of copyright by reason of s 42(1)(b) of the Act;
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- Fairfax is not estopped from asserting that Reed’s reproduction and communication of AFR headlines in the Abstracts as part of the ABIX service amounts to infringement of its copyright in the contended works.
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