The United States has set a high bar for copyrightable materials when
compared to copyright law governing Australia and the United Kingdom. As
noted in Australia’s ruling on the issue of copyright and headlines, headlinesare inseparable from the facts they describe and often are too short to qualify
for copyright protection.341 Even if copyright subsists in a headline and its
accompanying excerpts on a news aggregator’s websites, the doctrine of fair
use can be used to defend the aggregator’s use of original content. The fair use
defense as interpreted by U.S. courts affords the law flexibility when dealing
with emerging technology, such as news aggregators. Although news
aggregators are seen as a hindrance to original content providers, readily
available and well-known safety barriers exist, which prevent news
aggregators from accessing online content. Thus, courts are likely to place the
onus on news publishers to take advantage of these technological measures to
defend against news aggregators. Because the Internet was created on a
foundation of an open atmosphere for all users, courts cannot be expected to
monitor every Internet user who does not use a site the way it was intended,
especially when websites have chosen to forgo protective measures