Are newspaper headlines protected by copyright?

The Japanese Intellectual Property High Court (a branch court of the Tokyo High Court) has ruled that a small Internet company’s unauthorised use of headlines from Japan’s best-selling newspaper, the Yomiuri Shimbun, is illegal.

Strangely, although the company, Digital Alliance Corporation, has been ordered to pay about Â¥237,700 (about US$2,000 or A$2,758) to the Yomiuri, and the court said that the use of the headlines was illegal, Judge Tomokatsu Tsukahara noted that as headlines are not mentioned in Japan’s Copyright Law the law is not completely clear, and he did not order Digital Alliance to take down the headlines from its website. Presumably Digital Alliance’s use of the headlines was illegal for a reason other than copyright infringement.

Perhaps it had something to do with the fact that Digital Alliance made money by using the headlines. According to news reports, Digital Alliance runs a small information website called Line Topics, which collects news articles and headlines. The hypertext links underlying the headlines on Line Topics are to the Japanese site of search giant Yahoo!, where the article posted (although not, it seems, the article published by the Yomiuri). The Yomiuri argued that Digital Alliance generated advertising revenue by linking to Yahoo!, which pays news organisations for posting news items. (Although not completely clear, the newspaper’s complaint was limited to the unauthorised use of headlines, and not the articles themselves, which Digital Alliance does not seem to have duplicated).

Are, or should, news headlines be protected by copyright? Under United States and English law, headlines are unlikely to attract coyright protection. In the United States, while it is possible for short phrases or titles to be protected under copyright, it is very uncommon, given the heightened level of originality usually required in this context. Titles are more likely to be protected under unfair competition, or perhaps even trademark law principles. In the United Kingdom titles are generally thought to be insufficiently substantial, to attract copyright protecion, although in 1997 the Scottish Court of Sessions left open the possibility (Shetland Times Ltd v Wills [1997] FSR 604 (Sess Cas)), which has not been directly countered. But as a general principle, in the US and UK, titles are rarely protected under copyright law (if at all).

A related issue is whether URLs, ie, the hypertext links underlying the titles at issue (which indicate the location of the news articles themselves), are protected by copyright. This issue, apparently not considered by the Japanese Intellectual Property High Court (according to available media coverage), has been considered several times by courts in the United States. While it is doubtful that copyright subsists in URLs under United States law, if it does then their reproduction may very well be infringing.