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A spider caught in its own net

October 2011 - Intellectual Property. Legal Developments by Norrbom Vinding Law Firm, member of ius laboris.

More articles by this firm.

Copyright and media
The Court of Appeal of England and Wales recently ruled that newspaper headlines collected via a spider may be copyrighted material.
The boundaries of copyright on the internet are still much in debate. In this case, the UK courts considered whether newspaper publishers’ rights were infringed when a media monitoring business had a spider trawl the publishers’ websites, among other things in order to find references to its clients in articles on the media sites.
Each day the media monitoring business would send an email alert to its clients with a link to the articles in which they were mentioned that day. The headline of the news articles would typically be included in the email alert, as would an extract of the article and some words from the text body to provide some context.
The High Court had held, among other things, that the headline of a news article may be copyrighted in itself. Therefore, linking to the news articles in the email alerts by means of the headline was in itself an infringement of the publishers’ copyright. The judgment was appealed, among other things to test this conclusion.
One of the issues to be considered by the Court of Appeal was whether the EU Court's ruling in Infopaq changed the traditional conditions for copyright protection in UK law. Infopaq may be taken as saying that the concept of a copyright work has been harmonised. The concept of a copyright work defines the conditions that must be met in order for a work to be copyrighted and, so far, it is has been left to the member states to decide this for themselves.
The Court of Appeal did not believe that any harmonisation could be inferred from Infopaq. Therefore, the conditions for copyright protection under UK case law still applied. And it is well-established case law that a work must be an original literary work to be copyrighted.
The Court of Appeal then concluded that even a few words or a single sentence may be copyrighted under UK law. But this will depend on the circumstances of each individual case, and the High Court’s judgment was too generally worded as it regarded all headlines of news articles as copyrighted works.
Norrbom Vinding notes:
  • that the EU Court’s ruling in Infopaq caused a stir throughout Europe because it could be taken as meaning that the EU Court had harmonised the concept of a work; and

  • that, against this background, it is interesting to note that the Court of Appeal seemed not to want to give the EU Court’s ruling in Infopaq more far-reaching significance than necessary, which may indirectly affect the Danish Supreme Court’s judgment in Infopaq (the main proceedings).
The above does not constitute legal advice and should not be relied upon as such
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