Scottish Court of Session Decisions

The cause called on the motion roll of the Lord Ordinary (Hamilton) on the pursuers' motion for interdict ad interim.

At advising, on 24 October 1996, the Lord Ordinary allowed the motion.

LORD HAMILTON'S OPINION—The pursuers own and publish The Shetland Times, a newspaper which carries local, national and international news. The second defenders provide a news reporting service and trade under the name ‘The Shetland News’. The first defender is the managing director of the second defenders.

In The Shetland Times there appear news items comprising texts under relative headlines. Photographs also appear.

In the issue of The Shetland Times printed on Friday, 11 October 1996, there appeared an item, running to several paragraphs, concerning financial difficulties about the Fraser Peterson Centre in Shetland. It appeared under the headline ‘Bid to save centre after council funding "cock up"’. A number of other items also appeared in that issue, each under a relative headline.

The Internet is a worldwide electronic system used for the exchange of information. Such information may include advertising material. Information is accessed through computers in conjunction with the telephone system. Persons wishing to impart information or to advertise on the Internet can do so by establishing for themselves a ‘web site’. Access to the information available at a web site is gained by callers accessing a relative ‘web address’.

The pursuers have recently established such a web site. By this means they make available on the Internet items, including photographs, which appear in printed editions of The Shetland Times. Such items are stored electronically by reference to an index of relative headlines, being the headlines which appear above those items in the printed issues. Access to the text of the printed items is gained by the caller clicking on the relative headline which appears on a ‘front page’. The front page is the display which first appears on access being gained to the pursuers' web site. The pursuers' front page bears the heading ‘The Shetland Times’. On an item being accessed there appears below the text a note in the following terms:

Comments or suggestions on this server [sic] please to [email protected]’

The pursuers have expended resources in establishing this web site. It is their expectation that, once this information service becomes known to and is used by Internet users, the pursuers will be able to sell advertising space on the front page on their web site.

The defenders also operate a web site with a relative web address. The front page accessed by callers at that web address is headed ‘The Shetland News’ and subheaded ‘Main Headline Page’. A number of advertisements appear on that page. Beneath those are a number of news headlines.

Since about 14 October 1996 the defenders have included among the headlines on their front page a number of headlines appearing in recent issues of The Shetland Times as reproduced on the pursuers' web site. These headlines are verbatim reproductions of the pursuers' headlines as so reproduced. A caller accessing the defenders' web site may, by clicking on one of those headlines appearing on the defenders' front page, gain access to the relative text as published and reproduced by the pursuers. Access is so gained and subsequent access to other such headlines also gained without the caller requiring at any stage to access the pursuers' front page. Thus, access to the pursuers' items (as published in printed editions and reproduced by them on their web site) can be obtained by bypassing the pursuers' front page and accordingly missing any advertising material which may appear on it.

In this action the pursuers seek declarator that the defenders' actings constitute an infringement of copyright owned by them. The case came before me on the pursuer's motion for interim interdict.

The grounds of action are twofold. The pursuers maintain that the headlines made available by them on their web site are cable programmes within the meaning of sec 7 of the Copyright, Designs and Patents Act 1988 (‘the Act’), that the facility made available by the defenders on their web site is a cable programme service within the meaning of sec 7, and that the inclusion of those items in that service constitutes an infringement of copyright under sec 20 of the Act. The pursuers also maintain that the headlines are literary works owned by them and that the defenders' activities constitute infringement by copying under sec 17 of the Act, the copying being in the form of storing the works by electronic means.

Counsel for the pursuers maintained that in respect of each of those grounds of action the pursuers had a prima facie case and that the balance of convenience favoured the grant of interim interdict. Counsel for the defenders maintained that the pursuers had no prima facie case on either ground and that the balance of convenience favoured the refusal of interim interdict.

Counsel for the defenders did not dispute that copyright subsisted in the pursuers in the text of items appearing in the printed editions of The Shetland Times and in such texts therefrom as appeared on the pursuers' web site. It was acknowledged that these were literary works. It was, however, maintained that no copyright subsisted in the headlines. I shall return to that issue in due course.

The principal argument before me related to the alleged infringement under sec 20. This turned essentially on an interpretation of sec 7. That section, by subsec (1), defines ‘cable programme’ as meaning ‘any item included in a cable programme service’ and defines ‘cable programme service’ as meaning: [his Lordship quoted the definition of ‘cable programme service’ and then the terms of sec 7(2) set out supra and continued.]

Counsel for the defenders submitted (1) that the process involved in Internet communication did not involve ‘sending’ information, (2) that, if it did, the sending was in the circumstances done not by the pursuers but by the defenders, and (3) that, in any event, the service was an ‘interactive’ service excepted by subsec (2)(a). No detailed technical information was put before me in relation to the electronic mechanisms involved. It was simply submitted that there was not ‘sending’ in an ordinary sense and that a contrast could be made with cable television where there was sending by transmission from the provider to the customer. On the Internet a caller electronically accessed information which was provided entirely passively.

In my view the pursuers' contention that the service provided by them involves the sending of information is prima facie well founded. Although in a sense the information, it seems, passively awaits access being had to it by callers, that does not, at least prima facie, preclude the notion that the information, on such access being taken, is conveyed to and received by the caller. If that is so, the process may arguably be said to involve the sending of that information.

If the information is being sent, it prima facie is being sent by the pursuers on whose web site it has been established. The fact that the information is provided to the caller by his accessing it through the defenders' web site does not, in my view, result in the defenders being the persons sending the information.

As to the argument founded on sec 7(2)(a), the contention was that, because it was possible for a caller to contact the pursuers by the Internet and because comments and suggestions were encouraged by the note below the text to be transmitted by this means, any cable programme service was interactive and fell within the exception. It was also submitted that information by way of comment and suggestion could also be sent by this means to the defenders' web site. In my view, it is plainly arguable that the exception does not apply. While the facility to comment or make suggestions via the Internet exists, this does not appear to me to be an essential element in the service, the primary function of which is to distribute news and other items. In any event, it is arguable that this facility is a severable part of the pursuers' cable programme service.

The resolution of the above issues may in the end turn on technical material not available to me at the hearing on interim interdict. On the information that was available and on the basis of the arguments presented, the pursuers have, in my opinion, a prima facie case that the incorporation by the defenders in their web site of the headlines provided at the pursuers' web site constitutes an infringement of sec 20 of the Act by the inclusion in a cable programme service of protected cable programmes.

As to sec 17, counsel for the defenders submitted that headlines such as ‘Bid to save centre after council funding "cock up"’ and the other headlines complained of in the summons were not original literary works within the meaning of the Act and that accordingly there was no infringement in copying them by any means. It was submitted that there was not such expenditure of skill or labour as to make any of them original literary works; they were ‘ordinary in the extreme’. He did not go so far as to submit that no newspaper headline could ever attract copyright. His position was that those complained of did not.

I was not referred to any authority on this aspect. While literary merit is not a necessary element of a literary work, there may be a question whether headlines, which are essentially brief indicators of the subject matter of the items to which they relate, are protected by copyright. However, in light of the concession that a headline could be a literary work and since the headlines at issue (or at least some of them) involve eight or so words designedly put together for the purpose of imparting information, it appeared to me to be arguable that there was an infringement, at least in some instances, of sec 17.

The balance of convenience clearly, in my view, favoured the grant of interim interdict subject to certain amendments in the formulation of the conclusion. The defenders' activities of which complaint is made have just begun. It was not suggested that they would sustain any loss if prevented ad interim from making use of the pursuers' material in this way. It was fundamental to the setting up by the pursuers of their web site that access to their material should be gained only by accessing their web directly. While there has been no loss to date, there is a clear prospect of loss of potential advertising revenue in the foreseeable future. The extent of any loss will be difficult to quantify. There was, in the circumstances, no substance, in my view, in the suggestion that the pursuers were gaining an advantage by their newspaper items being made available more readily through the defenders' web site.

Certain amendments having been made to the second conclusion, I granted interim interdict in terms of that conclusion as amended.