Danish clippings service Infopaq was taken to court by Danish
newspaper industry body Danske Dagblades Forening (DDF) over its
reproduction of 11-word snippets of news for sale to clients.
The agency would scan in newspaper pages and use software to
turn the image of the page into text. If pre-determined keywords
that clients wanted monitored appeared in text then that word and
the five words on either side of it were kept and the rest of the
text thrown away.
Clients were then sent the 11 words and the details of what page
of what publication on what date the words appeared as well as an
indication of how far into the article the words came.
Infopaq conceded that acts of copying and reproduction took
place in the process, but said that the use was legal because of
exceptions in the European Union's Copyright Directive for
'transient' copying of material and lawful copying.
The ECJ said that while some parts of Infopaq's processing could
be called transient, as soon as it had printed out the 11 words on
to paper the copying became too permanent to qualify for the law's
exception.
"The possibility cannot be ruled out at the outset that in the
first two acts of reproduction at issue in those proceedings,
namely the creation of [image] files and text files resulting from
the conversion of [image] files, may be held to be transient as
long as they are deleted automatically from the computer memory,"
said the ECJ ruling.
"By the last act of reproduction in the data capture process,
Infopaq is making a reproduction outside the sphere of computer
technology. It is printing out files containing the extracts of 11
words and thus reproduces those extracts on a paper medium," it
said. "Once the reproduction has been affixed onto such a medium,
it disappears only when the paper itself is destroyed."
"Since the data capture process is apparently not likely itself
to destroy that medium, the deletion of that reproduction is
entirely dependent on the will of the user of that process. It is
not at all certain that he will want to dispose of the
reproduction, which means that there is a risk that the
reproduction will remain in existence for a longer period,
according to the user’s needs," said the judgment.
Though the Court conceded that "words as such do not…constitute
elements covered by the protection", it said that copyright law
would apply to extracts even if they contained just 11 words.
"The possibility may not be ruled out that certain isolated
sentences, or even certain parts of sentences in the text in
question, may be suitable for conveying to the reader the
originality of a publication such as a newspaper article, by
communicating to that reader an element which is, in itself, the
expression of the intellectual creation of the author of that
article," it said. "Such sentences or parts of sentences are,
therefore, liable to come within the scope of the protection
provided for in Article 2(a) of that directive."
"An act occurring during a data capture process, which consists
of storing an extract of a protected work comprising 11 words and
printing out that extract, is such as to come within the concept of
reproduction in part within the meaning of Article 2 of [the]
directive," said the ruling.
The Court said that it would be up to a national court to decide
whether or not a newspaper article deserved copyright protection as
being "original in the sense that it is its author’s own
intellectual creation", but it did say that it was "common ground"
that newspaper articles did qualify as literary works and so as
being protected by copyright law.
The ECJ said that Infopaq's processes, then, could not be
exempted from the Copyright Directive and that if the national
court ruled the articles in question to be deserving of copyright
protection then there will have been an infringement.
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