From Boingboing.net. The National Post is arguing that it is entitled to enforce copyright in the title (headline) of a newspaper article entitled: “Jonathan Kay on Richard Warman and Canada’s Phony-Racism Industry”
The National Post says in its memorandum:
62. Moreover, the headline of the article was also a substantial part of the work. The application judge erred by failing to consider the effect of reproducing the headline of the article even though the Copyright Act defines a “work” as including the title of that work “when such title is original and distinctive.”
63. The headline of the article was both original and distinctive. In Canada, the threshold for originality in a work is “rather low.” In order for a work (or the title of a work) to be “original”, all that is required is an exercise of skill and judgment by the author, which involves intellectual effort. Such exercise must not be so trivial that it could be characterized as a purely mechanical exercise. However, the statutory requirement of originality does not imply inventive originality. It is enough that the work is the production of something in a new form as a result of the skill, labour and judgment of the author.
64. Something that is “distinctive” is “serving to differentiate or distinguish; peculiar to one person or thing as distinct from others, characteristic; having well-marked properties; easily recognized.” Something that is “distinct” is “distinguished as not being the same; not identical; separate; different in nature or quality.”49 The title of the Kay Work possesses these qualities, distinguishing the Kay Work from other newspaper articles, and in so doing is distinctive.
65. The headline, “Jonathan Kay on Richard Warman and Canada’s Phony-Racism Industry”, clearly demonstrates creativity, originality and distinctiveness, including the distinctive and original concept of a “phony-racism industry.”
This position, if adopted by the Federal Court of Appeal, would have startling and potentially absurd consequences. The automated extraction of titles (i.e. headlines) is the very basis not only of Google News and other news aggregators but of Google, Bing and other search engines. Every scholarly article is full of cited titles.
Not to mention Twitter, in which a very large percentage of tweets are nothing more than automated quotations of newspaper article headlines, blog titles, etc. with a shortened link.
Editor’s Note: Alright everybody – start writing headlines so we can all start suing the National Post …
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