Case C-302/10

Infopaq International A/S

v

Danske Dagblades Forening

(Reference for a preliminary ruling from the Højesteret)

‛Copyright — Information society — Directive 2001/29/EC — Article 5(1) and (5) — Literary and artistic works — Reproduction of short extracts of literary works — Newspaper articles — Temporary and transient reproductions — Technological process consisting in scanning of articles followed by conversion into text file, electronic processing of the reproduction and storage of part of that reproduction — Acts of temporary reproduction which form an integral and essential part of such a technological process — Purpose of those acts being the lawful use of a work or protected subject-matter — Independent economic significance of those acts’

Summary of the Order

Approximation of laws — Copyright and related rights — Directive 2001/29 — Harmonisation of certain aspects of copyright and related rights in the information society — Right of reproduction — Exceptions and limitations — Conditions — No conflict with a normal exploitation of the work and no unreasonable prejudice

Approximation of laws — Copyright and related rights — Directive 2001/29 — Harmonisation of certain aspects of copyright and related rights in the information society — Right of reproduction — Exceptions and limitations — Conditions — Acts having the sole purpose of enabling the lawful use of a protected work — Acts of reproduction carried out during a data capture process — Included

On a proper construction of Article 5(1) of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society, the acts of temporary reproduction carried out during a ‘data capture’ process consisting in carrying out electronic and automatic research in newspaper articles and identifying and extracting predefined key words from those articles, in order to render the drafting of summaries of newspaper articles more efficient, and which materialise through the scanning of newspaper articles followed by conversion into text file, then by the creation of a file including an extract of 11 words, fulfil the condition that those acts must constitute an integral and essential part of a technological process, notwithstanding the fact that they initiate and terminate that process and involve human intervention. The concept of the integral and essential part of a technological process requires the temporary acts of reproduction to be carried out entirely in the context of the implementation of the technological process and, therefore, not to be carried out, in full or in part, outside such a process. This concept also assumes that the completion of the temporary act of reproduction is necessary, in that the technological process concerned could not function correctly and efficiently without that act. Furthermore, given that Article 5(1) of Directive 2001/29 does not specify at which stage of the technological process the acts of temporary reproduction must be carried out, it cannot be excluded that such an act can initiate or terminate that process. Similarly, there is nothing in that provision to indicate that the technological process must not involve any human intervention and that, in particular, manual activation of that process be precluded, in order to achieve a first temporary reproduction. (see paras 30-34, 39, operative part 1)

Article 5(1) of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as meaning that the acts of temporary reproduction carried out during a ‘data capture’ process consisting in carrying out electronic and automatic research in newspaper articles and identifying and extracting predefined key words from those articles, in order to render the drafting of summaries of newspaper articles more efficient, and which materialise through the scanning of newspaper articles followed by conversion into text file, then by the creation of a file including an extract of 11 words, fulfil the condition that those acts of reproduction must pursue a single purpose, namely, to enable the lawful use of a protected work or a protected subject-matter. (see paras 33, 34, 46, operative part 1)

Article 5(1) of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as meaning that the acts of temporary reproduction carried out during a ‘data capture’ process consisting in carrying out electronic and automatic research in newspaper articles and identifying and extracting predefined key words from those articles, in order to render the drafting of summaries of newspaper articles more efficient, and which materialise through the scanning of newspaper articles followed by conversion into text file, then by the creation of a file including an extract of 11 words, fulfil the condition that those acts must not have an independent economic significance in so far as, first, the implementation of those acts does not enable the generation of an additional profit going beyond that derived from the lawful use of the protected work and as, secondly, the acts of temporary reproduction do not lead to alteration of that work. In that regard, the efficiency gains resulting from the performance of the acts of temporary reproduction have no such independent economic significance, inasmuch as the economic advantages derived from their application materialise only when the reproduced subject-matter is used, with the result that they are neither distinct nor separable from the advantages derived from its use. On the other hand, an advantage derived from an act of temporary reproduction is distinct and separable if the author of that act is likely to make a profit due to the economic exploitation of the temporary reproductions themselves. The same is true if the acts of temporary reproduction lead to a change in the subject-matter reproduced, as it exists when the technological process concerned is initiated, because those acts are no longer intended to facilitate its use, but the use of different subject-matter. (see paras 33, 34, 51-54, operative part 1)