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.