With content curation and other literary works still being in the grey area with respect to Copyright Laws, Sarang Khanna, Marketing Analyst and Researcher at iPleaders, asks an interesting question – Can News Headlines Be Copyrighted? 

Would you happen to take a wild guess as to what constitutes ‘news’ these days, especially on the social media? Let me answer this for you – celebrity fashion statements, celebrity weddings, with the recent one of Sonam Kapoor and Anand Ahuja!

Open Facebook or Instagram and you’ll be flooded with news, images and videos about their wedding ceremonies, who wore what, who danced to what, yada yada yada. What is interesting to note is that if you happen to read the headline of these news reports, they all seem to be the same: Sonam Kapoor and Anand Ahuja Married! However, there are certain very unique headlines I came across that can get any reader interested (even if you don’t want to know whether KJo danced to Shava Shava or not). Let me give you some examples:

• Koi Mil Gaya song video: SRK forgets steps, copies Ranveer at Sonam Reception [The Deccan Chronicle]
• After Wedding To Anand Ahuja, Sonam Kapoor Changes Her Name On Instagram [NDTV]
• Anand Ahuja age and net worth after his marriage to Sonam Kapoor [metro.co.uk]
• Sonam Kapoor now a married woman: Star galore at celebration [The Gulf News]

And another: “Bhai Power: Salman ignores Jacqueline, hugs Katrina at Sonam Reception”. While I do not quite comprehend the media frenzy over this wedding, as a lawyer who takes keen interest in intellectual property rights, I was wondering if these headlines could be protected? I mean, think about it. What help is it to a news business if competitors can copy their headlines?

Having limited knowledge about it, I decided to research. I found an interesting case named Krishika Lulla v. Shyam Vithalrao Devkatta. Ever heard of the movie Desi Boyz? Yes, the John Abraham and Akshay Kumar no-brainer that went on to collect over 80 Crores at the Box Office (sometimes I genuinely wonder how!). Writer Shyam Vithalrao Devkatta had filed a case under the Copyright Act stating that although the script wasn’t copied, the title to a script he had written i.e. ‘Desi Boys’ was infringed as it was the soul of the story and took away everything. The Supreme Court in 2011 had ruled that no copyright exists in the ‘title’ of a movie or any other literary work under the Copyright Act.

However, in this particular case, as the title consisted of only two words, that too a very generic phrase in the Hindi language, I started to wonder whether newspaper headlines would also be interpreted as ‘titles’ in the same sense? Research ensued,  as a result of curiosity, and let’s have a look at the technicalities that exist around the world in this respect, and what stand the Indian intellectual property space is likely to take, when an issue like this reaches the judiciary.

What Are The Qualifications For Copyright?

For a work to gain copyright protection, it must be an original work of authorship like literary works, musical and artistic works, cinematic works, and even computer programs. There is even copyright infringement of software by the means of software piracy.

As news headlines would fall under the category of “literary works”, we must  look at some Indian case laws discussing the same, but sadly there is none, talking specifically about the amount of skill involved in the headline or title writing. Let us then attempt to look at the broader definition of literary works, and how international jurisdictions have interpreted it in this regard.

Definition of ‘literary work’ –

The term ‘literary work’ does not take into consideration merit or style of the literature. Literary works include things such as poetry, novels, short stories, and even things like stock exchange listings, prices, logarithm tables etc. In the UK, to decide whether or not something falls under the category of a literary work, the courts  usually rely on the test laid out in Hollinrake v. Truswell (1894) in which the qualification for literary work is that it must provide ‘either information or instruction, or pleasure, in the form of literary enjoyment’.

The Infopaq Case – Prosecuted for scanning and copying 11 word extracts from popular newspaper articles, the European Court of Justice (ECJ) delivered an important judgement against Infopaq. The judgment was trendsetting for two reasons, as first, it set out that copyright was only applicable to a literary, musical, dramatic, or artistic works which are original ‘in the sense that it is its author’s own intellectual creation’.

Secondly, the court also noted that parts of a copyright work will enjoy the same protection as long as ‘they contain elements which are the expression of the intellectual creation of the author of the work’. It continued to hold that individual sentences, or even parts of them, constitute of literary work. Infopaq was hence found to be in copyright infringement,  as this case became a landmark test for the same.

The Meltwater Case – In this other landmark case, a British court explicitly acknowledged that newspaper headlines would be protected by copyright laws as free-standing literary works. Headlines, it was  noted “involve considerable skill in devising and they are specifically designed to entice by informing the reader of the content of the article in an entertaining manner. In my opinion headlines are capable of being literary works, whether independently or as part of the articles to which they relate.” To determine whether a particular headline was eligible for copyright protection, the judge in Meltwater held, the only test was to apply was whether the headline was original in the ‘Infopaq sense’.

Viewpoint For The Copyright Protection of Headlines

The main argument for protection of headlines lies in the concept of skill, judgement and creativity that the author employs in headlines. In the popular Infopaq case, the ECJ held that “isolated sentences” would qualify as a literary work under the copyright law if “it conveyed to the reader the originality of the publication by communicating to the reader an element of expression of intellectual creation by the author.” It concluded that eleven word fragments would constitute impermissible reproduction if it were to convey the intellectual creation of the original author. Thereby, the court held that a headline by itself could convey the originality of the article to the reader.

The UK Court of Appeals upheld this judgement in NLA v. Meltwater wherein it was held that headlines were copyrightable as headlines involved considerable skill and were specifically designed and composed to entice the reader by informing the reader of its contents in an entertaining manner. It also made a reference to the University London Press judgement, for the requirement of creativity, a landmark judgement vastly relied on by the Indian courts.

The New Zealand High Court also upheld that the ‘title’ could be considered as an original literary work. Original literary works were not confined to only works of extensive literature as there is no requirement of literary merit, it was observed by the NZ High Court.

Viewpoint against Copyright Protection of Headlines

The main line of argument against protection of headlines stems from the maxim “de minimis non curat lex”, which when applied to copyright cases essentially states that the law does not concern itself with trifles or with what is negligible. Thus, it brings in the concept of substantiality in terms of copyright protection. When it is brought into the realm of copyright law, that is to say, what lies in the lack of substantiality of a work in the nature of a headline or title.

This argument, though has not been recognized as a necessary qualification in the Indian courts (according to Pepsi Co vs Hindustan Coca Cola), has been upheld by the Federal Court of Australia in the prominent case of Fairfax Media v. Reed International Books. It was  held that headlines by themselves were not substantial or extensive and did not have a significant character of their own, and that they lacked the lacked originality as required in a literary work, unlike detailed news reports.

However, the reasoning based on originality is misplaced since the headlines originate from the author and require some skill. Therefore,  in my opinion, the court has erred in its decision to define a relationship between substantiality and originality. The threshold of substantiality alone can however, stand in respect to copyright protection for headlines.

Landmark cases in Intellectual Property Law boil down vastly to the kind of arguments you rely on to make your case indispensable. IP lawyers and professionals need to be well versed with legal, and even various scientific and technological aspects. Especially in a country like India, which is often looked at as a non-IP friendly regime. Although, every year the IP litigation is increasing which is a good sign as far as awareness and protection go.

Companies and even individuals constantly need smart legal professionals to ensure that their creative works are not used by other people. In-depth knowledge of intellectual property is the only way to make sure that your copyright, or patent, or trademark is not violated, and even if it is, what is the way to go about it.

Could Headlines By Copyrightable In India?

In essence the debate on according protection to headlines is placed on two themes, creativity and substantiality. While a headline may involve creativity, it may only involve as short as three words, whose combination would be removed from the public domain. While the former, i.e. the creativity would be a reason to accord copyright protection, the latter, i.e. the erosion of the public domain may be a reason to not accord protection to works that are insubstantial.

In the debate between skill and erosion of public domain, the answer lies in deciding which one of these themes is more indispensable as a principle in copyright law.  While skill is a necessary constituent of originality as per the decision in EBC v. DB Modak, the substantiality of the work, is based on the principle of de minimis which is a maximum not specific to copyright law. Further headlines, per se, are not necessarily short, and may often consist of two or more sentences. Even when they are short, they still pass the originality test. Also, having a substantiality test would erode the principle in University London, i.e. fixation and originality being the only basic qualifications required for copyright protection. Hence, in my opinion, headlines must be held copyrightable.

However, it must be acknowledged that in India the position the courts would likely take is towards applying the substantiality test as applied in Fairfax in Australia. This is since the de minimis rule has been applied to copyright cases such as Pepsi, and hence a standard of substantiality may be required, in case this issue comes before the Indian courts.

On the other hand Meltwater will only have persuasive value, which would be considerable, as it placed reliance on University London in stating the satisfaction by headlines of the originality test. Therefore, on a cumulative weighing of Indian precedent and persuasive English precedent, the courts in India are likely to involve a standard of substantiality in affording protection, thereby denying protection to most headlines.

In the result, the most likely and correct result, in my personal opinion, is that Indian courts should confirm copyright protection over headlines, once such headlines satisfy a basic standard of substantiality, i.e. the weight of such headlines, as compared to the weight of the entire work in itself, it must be substantial enough to warrant general copyright protection. There is clarity in the Indian law about movie titles being ineligible to enjoy copyright law (refer this news report by The Hindu), but there is still lack of clarity with respect to news headlines, as no such case has yet reached the courts.

However, copyright being an automatic protection on the fixation of the work, this issue may only be resolved in each case where such a headline is alleged to be infringed. Further, given that in a fast moving news or media industry like in India, such headline infringement, even if proven, cannot really be undone, given the limited shelf-life of such content. Only damages may be awarded in infringement cases in India, if  at all, which will still in most cases, not be an effective remedy for the situation.

Intellectual Property is a tricky thing. While mere ideas cannot be protected, even substantial yields of intellectual prowess find it hard to be safeguarded from infringement. In a global village that the society is becoming, violation is easy and hard to detect. For entrepreneurs and freelancers, these times demand caution, for corporates they demand dedication, for students they demand awareness, and for lawyers they demand knowledge.

The relevance of intellectual property rights is at its peak today, and it is only increasing. Let us all do an activity today, let us open our eyes for all Intellectual Property around us, and spot trademarked, patented, and copyrighted materials throughout the day. You will be amazed by how comfortable intellectual property of others has made our lives, and how granted do we take it for.

Good luck!