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UK says copyright can subsist in extracts.

20/12/2010

An English Court has held that newspaper headlines and short extracts from newspaper articles are protected by copyright.

The Newspaper Licensing Agency Limited and sis major news publishers sued the users of an online commercial monitoring service for copyright infringement. The monitoring service  provided links to news articles.  Each link comprised the press headline and a short extracts, up to 256 words.  The publishers were aggrieved that the monitoring service made millions of pounds from scraping and on-selling the publishers’ content.    The Court followed a decision of the European Court of Justice that copyright subsisted in an 11-word extract from a newspaper if it reflected the intellectual creation of the author.  Even a very brief extract may be a substantial part of the whole  if it demonstrates the article’s inventive individuality.   The monitoring service infringed that copyright by forwarding the extract to end-users, who also infringed by downloading selected articles in full.  The monitoring services conduct was not a fair dealing because it was a subscription service, not provided to the public generally.  The end users’ conduct was not a fair dealing, because the simple act of viewing the text extract cannot amount to criticism or review, even if the end-user applies a critical mind. Moreover, a single end user could receive and copy text extracts from 50,000 articles each year, which can hardly be considered ‘fair’

The judgement is at odds with the Australian decision in Reed v Fairfax, considered in a previous post.  In this country, short illustrative examples extracted from copyright works do not carry copyright, the headlines require specific proof of authorship and are capable of being a fair dealing with the whole work.  In a global market for news, it seems unsatisfactory that Australia and Europe are out of step with each other. The Attorney-General may well refer the question to the  Australian Law Reform Commission.


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