Wednesday July 29th 2009, by Piers Strickland
SUMMARY: ECJ holds that even 11 word long extracts from newspapers can amount to acts of copyright infringement if such reproductions are “the expression of the intellectual creation of their author”.
In a the recent case of Infopaq International A/S v Danske Dagblades Forening, Case C‑5/08, 16 July 2009, the ECJ considered whether reproduction of extracts from newspaper articles infringed copyright.
Facts
Infopaq International A/S (“Infopaq”) operated a business which collected summaries of selected articles from Danish daily newspapers.
Danske Dagblades Forening (“DDF”), a professional association of Danish daily newspaper publishers, became aware in 2005 that Infopaq was scanning newspaper articles for commercial purposes without authorisation from the relevant rights-holders. Taking the view that such consent was necessary, DDF complained to Infopaq about this procedure.
Infopaq denied that consent was required, and brought an action against DDF before the Østre Landsret (Eastern Regional Court), claiming that DDF should be ordered to acknowledge that Infopaq was entitled in Denmark to apply its data capture procedure without DDF’s or its members’ consent. The Østre Landsret dismissed that action, so Infopaq then appealed to the Højesteret (the Danish Supreme Court).
The Højesteret stayed the proceedings and asked the ECJ for a preliminary ruling on:
• Whether the concept of ‘reproduction in part’ within the meaning of the Copyright Directive is to be interpreted as meaning that it encompasses the storing and subsequent printing out on paper of a text extract consisting of 11 words;
• Whether acts of reproduction occurring during a data capture process, such as that at issue in the main proceedings, satisfy the conditions laid down in Article 5(1) of Copyright Directive and, therefore, whether that process may be carried out without the consent of the relevant rightholders, since it is used to draw up summaries of newspaper articles and consists of scanning those articles in their entirety to produce a digital file, storing an extract of 11 words and then printing out that extract.
The Law
Article 2(a) of the Copyright Directive states that:
“Member States shall provide for the exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part:
(a) for authors, of their works”
Article 5(1) of the Copyright Directive provides that:
“Temporary acts of reproduction referred to in Article 2, which are transient or incidental and an integral and essential part of a technological process and whose sole purpose is to enable:
(a) a transmission in a network between third parties by an intermediary, or
(b) a lawful use
of a work or other subject-matter to be made, and which have no independent economic significance, are exempted from the reproduction right provided for in Article 2.”
The exceptions and limitations provided for in Article 5(1) can only be applied in certain special cases which do not conflict with normal exploitation of the work or other subject-matter and do not unreasonably prejudice the legitimate interests of the right-holder (Article 5(5), Copyright Directive).
Decision
The ECJ held that Infopaq’s data capture process did come within the concept of reproduction as set out in Article 2 of the Copyright Directive, if the elements reproduced were the “expression of the intellectual creation of their author”.
The ECJ also ruled that the act of printing out an extract of 11 words, during such a data capture process, was not transient in nature as required by Article 5(1) of the Copyright Directive. Therefore, that process could not be carried out without the relevant right-holders’ consent.
Comment
The battleground in copyright disputes and in copyright litigation will be over the question of whether the reproduction in question will constitute an “expression of the intellectual creation of their author”. It has been left for the national courts to decide upon this issue.
In the courts of England and Wales, copyright infringement matters have been recently decided by assessing whether a “substantial part” of the copyright work has been reproduced. The substantial part test is part qualitative and part quantitative.
The new test introduced by the ECJ seems to be different. It doesn’t seem to place the reproduced text in its originating context, but instead asks whether this text alone is the expression of the intellectual creation of their author. This will be difficult for the national court to decide during copyright litigation proceedings and will provide hours of fun for barristers in court (and thus hours of frustration for clients…).
The ECJ also gave some useful guidance about Article 5(1) of the Copyright Directive. In particular, in respect of what amounts to a “transient” act for the purposes of that provision. The ECJ made clear that, amongst other things, in order to fall under this condition the process had to be automated so that the copy created was deleted automatically, without human intervention. Again, the ECJ left it for the national courts to decide whether such acts of reproduction were transient given this guidance.
