Opinion of the Advocate-General



Opinion of the Advocate-General

I – Introduction

1. This case raises the sensitive issue of the balance between the protection of copyright and technological development in the information society. The protection of copyright should not on the one hand prevent the normal functioning and the development of new technologies, but on the other hand it is necessary to ensure an adequate protection of copyright in the information society. Technological development allows in fact faster and easier reproduction of works, for which reason protection of copyright must adapt to this technological development.

2. The questions referred to the Court in this case concern first of all whether the storing and printing of extracts from newspaper articles, where the extract is composed of the search word and the five preceding and five subsequent words, in the same order as in the newspaper article, can be regarded as reproduction within the meaning of Article 2 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (2) (‘Directive 2001/29’). The questions also concern whether the production of those extracts, which covers the scanning of newspaper articles leading to the creation of an image file and the conversion of this image file into a text file, and the storing of a extract consisting of 11 words, are permitted on the basis that they are reproduction activities which fulfil the conditions of Article 5(1) of Directive 2001/29. By its questions, the national court wishes to know, lastly, whether the acts of reproduction in this case fulfil the conditions of Article 5(5) of Directive 2001/29.

3. Those questions have been raised in the context of proceedings between Infopaq International A/S (‘Infopaq’) and the professional association of Danish daily newspaper publishers, in which Infopaq requested the national court to find that for the production of extracts from newspaper articles which are composed of search words and the five preceding and five subsequent words it does not require authorisation from the holders of copyright over the newspaper articles.

II – Legal framework

4. Recitals 4, 5, 9, 10, 11, 21, 22, 31 and 33 in the preamble to Directive 2001/20 provide:

‘(4) A harmonised legal framework on copyright and related rights, through increased legal certainty and while providing for a high level of protection of intellectual property, will foster substantial investment in creativity and innovation ... .

(5) Technological development has multiplied and diversified the vectors for creation, production and exploitation. While no new concepts for the protection of intellectual property are needed, the current law on copyright and related rights should be adapted and supplemented to respond adequately to economic realities such as new forms of exploitation.

...

(9) Any harmonisation of copyright and related rights must take as a basis a high level of protection, since such rights are crucial to intellectual creation. Their protection helps to ensure the maintenance and development of creativity in the interests of authors, performers, producers, consumers, culture, industry and the public at large. Intellectual property has therefore been recognised as an integral part of property.

(10) If authors or performers are to continue their creative and artistic work, they have to receive an appropriate reward for the use of their work, as must producers in order to be able to finance this work. ... Adequate legal protection of intellectual property rights is necessary in order to guarantee the availability of such a reward and provide the opportunity for satisfactory returns on this investment.

(11) A rigorous, effective system for the protection of copyright and related rights is one of the main ways of ensuring that European cultural creativity and production receive the necessary resources and of safeguarding the independence and dignity of artistic creators and performers.

...

(21) This Directive should define the scope of the acts covered by the reproduction right with regard to the different beneficiaries. This should be done in conformity with the acquis communautaire. A broad definition of these acts is needed to ensure legal certainty within the internal market.

(22) The objective of proper support for the dissemination of culture must not be achieved by sacrificing strict protection of rights or by tolerating illegal forms of distribution of counterfeited or pirated works.

...

(31) A fair balance of rights and interests between the different categories of rightholders, as well as between the different categories of rightholders and users of protected subject-matter must be safeguarded. The existing exceptions and limitations to the rights as set out by the Member States have to be reassessed in the light of the new electronic environment. Existing differences in the exceptions and limitations to certain restricted acts have direct negative effects on the functioning of the internal market of copyright and related rights. Such differences could well become more pronounced in view of the further development of transborder exploitation of works and cross-border activities. In order to ensure the proper functioning of the internal market, such exceptions and limitations should be defined more harmoniously. The degree of their harmonisation should be based on their impact on the smooth functioning of the internal market.

...

(33) The exclusive right of reproduction should be subject to an exception to allow certain acts of temporary reproduction, which are transient or incidental reproductions, forming an integral and essential part of a technological process and carried out for the sole purpose of enabling either efficient transmission in a network between third parties by an intermediary, or a lawful use of a work or other subject-matter to be made. The acts of reproduction concerned should have no separate economic value on their own. To the extent that they meet these conditions, this exception should include acts which enable browsing as well as acts of caching to take place, including those which enable transmission systems to function efficiently, provided that the intermediary does not modify the information and does not interfere with the lawful use of technology, widely recognised and used by industry, to obtain data on the use of the information. A use should be considered lawful where it is authorised by the rightholder or not restricted by law.’

5. Article 2 of Directive 2001/29, entitled ‘Reproduction right’, provides:

‘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;

...’

6. Article 5 of Directive 2001/29, entitled ‘Exceptions and limitations’, provides:

‘1. 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: (3)

(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, shall be exempted from the reproduction right provided for in Article 2.

...

3. Member States may provide for exceptions or limitations to the rights provided for in Articles 2 and 3 in the following cases:

…

(c) reproduction by the press, communication to the public or making available of published articles on current economic, political or religious topics or of broadcast works or other subject-matter of the same character, in cases where such use is not expressly reserved, and as long as the source, including the author’s name, is indicated, or use of works or other subject-matter in connection with the reporting of current events, to the extent justified by the informatory purpose and as long as the source, including the author’s name, is indicated, unless this turns out to be impossible;

(d) quotations for purposes such as criticism or review, provided that they relate to a work or other subject-matter which has already been lawfully made available to the public, that, unless this turns out to be impossible, the source, including the author’s name, is indicated, and that their use is in accordance with fair practice, and to the extent required by the specific purpose;

...

(o) use in certain other cases of minor importance where exceptions or limitations already exist under national law, provided that they only concern analogue uses and do not affect the free circulation of goods and services within the Community, without prejudice to the other exceptions and limitations contained in this Article.

…

5. The exceptions and limitations provided for in paragraphs 1, 2, 3 and 4 shall only be applied in certain special cases which do not conflict with a normal exploitation of the work or other subject-matter and do not unreasonably prejudice the legitimate interests of the rightholder.’

7. Article 2 of Directive 2001/29 was transposed into Danish law by Article 2 of the Ophavsretslov (Law on copyright) (4) which provides:

‘1. Subject to the limitations laid down in this law, copyright shall entail the exclusive right to dispose of the work by reproducing it and by making it accessible to the public, whether in the original or modified form, in translation, in adaptation into another literary or artistic form or into other technology.

2. Any direct or indirect, temporary or permanent reproduction, in whole or in part, by any means and in any form shall be considered as reproduction. The recording of the work on devices which can reproduce it, shall also be considered as a reproduction.

...’

8. Article 5(1) of Directive 2001/29 was transposed into Danish law by Article 11bis(1) of the Ophavsretslov, which provides:

‘It shall be permitted to make temporary copies which

(i) are transient or incidental;

(ii) are an integral and essential part of a technological process;

(iii) have as their sole purpose to enable a transmission of a work in a network between third parties by an intermediary, or a lawful use of a work; and

(iv) have no independent economic significance.’

III – Facts, main proceedings and questions referred for a preliminary ruling

9. Infopaq operates a media monitoring and analysis business. The media monitoring consists of drawing up summaries (5) of selected articles from Danish daily newspapers and other periodicals. The articles are selected on the basis of subject criteria agreed with Infopaq’s customers; the summaries are then sent to customers by email. On request, Infopaq also sends hardcopy clippings of newspaper articles to its customers.

10. The articles are selected on the basis of a ‘data capture process’ which has five stages.

11. In the first stage, basic information in respect of each publication is registered manually by Infopaq employees in an electronic database.

12. In the second stage, they scan the publications. Before the scanning, the spine of the publication is cut off so that all the pages are loose sheets; the selected extract is then scanned. On the basis of the scanning, an image file (6) is created for each page of the publication. The image file is then transferred to an Optical Character Recognition server. (7)

13. In the third stage, the Optical Character Recognition server converts the image file into a text file. To be more precise, the image of each letter is converted into an ‘ASCII code’, (8) which allows the computer to recognise each individual letter. Thus, for example, the image of the letters TDC is converted into something the computer can recognise as the letters TDC. The image of a word is therefore converted into an actual word which is saved as a text file and which can be understood by any text processing programme. The process using the Optical Character Recognition server is completed by deletion of the image file.

14. In the fourth stage, the text file is processed to find predefined search words. Each time the search word appears in the text, it is saved in a file giving the title of the publication, the section and the page in which the word in question is found. In addition, the file indicates a value, expressed as a percentage between 0 and 100, which indicates where the search word is to be found in the text. To further simplify finding the word when the article is later read, the five words preceding and following the word are indicated. This stage concludes by deletion of the text file.

15. During the fifth and sixth stages of the process, a document is printed out for each page of the newspaper in which the search word appears; this document contains the search word and the five words which precede and follow it. The national court gives an example of such a document:

‘4 November 2005 – Dagbladet Arbejderen, page 3:

TDC: 73% “forthcoming sale of the telecommunications group TDC, which is expected to be bought”.’

16. The Danske Dagblades Forening (‘DDF’) is the professional association of Danish daily newspapers whose function is to assist its members with any questions concerning copyright. In 2005, DDF became aware that Infopaq was producing extracts from press articles, without authorisation from the copyright holders – it informed Infopaq of this.

17. Infopaq disputed the claim that it required authorisation from the copyright holders to carry out its business and consequently brought an action against DDF before the Østre Landsret to obtain a declaration that it had the right to apply the ‘data capture process’ without the consent of DDF or its members. The Østre Landsret dismissed the action as unfounded, for which reason Infopaq lodged an appeal before the referring court (Højesteret).

18. In its order, t he national court states that it is not disputed in this case that consent from the copyright holders is not necessary in so far as monitoring of the written press and the drawing up of summaries of newspaper articles is involved, if a person physically reads each publication, if the articles are selected manually on the basis of predefined search words and if, on that basis, a document is produced manually, indicating the search word in the article in question and the position of that article in the publication. Nor is it disputed that, in itself, the drawing up of summaries does not require the consent of copyright holders.

19. It is thus not disputed in this case that the ‘data capture process’ involves two acts of reproduction, namely: (1) the scanning of newspaper articles on the basis of which an image file is created and (2) the conversion of the image file into a text file. The national court states moreover that this process also involves the continual reproduction of the articles thus processed as (3) the search word is stored with the five words which precede and follow it and (4) those 11 words are then printed out. The national court makes clear that the parties in the main proceedings disagree as to whether the acts referred to in (3) and (4) constitute reproduction within the meaning of Article 2 of Directive 2001/29.

20. Under those circumstances, the national court, by order of 21 December 2007, stayed the proceedings and referred the following questions to the Court of Justice for a preliminary ruling: (9)

‘(1) Can the storing and subsequent printing out of a text extract from an article in a daily newspaper, consisting of a search word and the five preceding and five subsequent words, be regarded as acts of reproduction (10) which are protected by Article 2 of Directive 2001/29/EC of the European Parliament and of the Council on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10)? (11)

(2) Is the context in which temporary acts of reproduction take place relevant to whether they can be regarded as “transient” (see Article 5(1) of Directive 2001/29)?

(3) Can a temporary act of reproduction be regarded as “transient” where the reproduction is processed, for example, by the creation of a text file on the basis of an image file or by a search for text strings on the basis of a text file?

(4) Can a temporary act of reproduction be regarded as “transient” where part of the reproduction, consisting of one or more text extracts of 11 words, is stored?

(5) Can a temporary act of reproduction be regarded as “transient” where part of the reproduction, consisting of one or more text extracts of 11 words, is printed out?

(6) Is the stage of the technological process at which temporary acts of reproduction take place relevant to whether they constitute an “integral and essential part of a technological process” (see Article 5(1) of Directive 2001/29)?

(7) Can temporary acts of reproduction be an “integral and essential part of a technological process” if they consist of manual scanning of entire newspaper articles whereby the latter are transformed from a printed medium into a digital medium?

(8) Can temporary acts of reproduction constitute an “integral and essential part of a technological process” where they consist of printing out part of the reproduction, comprising one or more text extracts of 11 words?

(9) Does “lawful use” (see Article 5(1) of Directive 2001/29) include any form of use which does not require the rightholder’s consent?

(10) Does “lawful use” (see Article 5(1) of Directive 2001/29) include the scanning by a commercial business of entire newspaper articles, subsequent processing of the reproduction, and the storing and possible printing out of part of the reproduction, consisting of one or more text extracts of 11 words, for use in the business’s summary writing, even where the rightholder has not given consent to those acts?

(11) What criteria should be used to assess whether temporary acts of reproduction have “independent economic significance” (see Article 5(1) of Directive 2001/19) if the other conditions laid down in the provision are satisfied?

(12) Can the user’s efficiency gains from temporary acts of reproduction be taken into account in assessing whether the acts have “independent economic significance” (see Article 5(1) of Directive 2001/29)?

(13) Can the scanning by a commercial business of entire newspaper articles, subsequent processing of the reproduction, and the storing and possible printing out of part of the reproduction, consisting of one or more text extracts of 11 words, without the rightholder’s consent, be regarded as constituting “certain special cases which do not conflict with a normal exploitation” of the newspaper articles and “not unreasonably [prejudicing] the legitimate interests of the rightholder” (see Article 5(5) of Directive 2001/29)?’

IV – Procedure before the Court

21. The order for reference was received at the Court on 4 January 2008. In the context of the written procedure, Infopaq, DDF and the Commission submitted observations. During the hearing on 20 November 2008, Infopaq, DDF and the Commission made oral statements and replied to the Court’s questions.

V – Arguments of the parties

A – First question referred

22. Infopaq considers that the storing and subsequent printing of an extract from the text of a newspaper article which contains the search word and the five words which precede and follow it do not constitute partial acts of reproduction within the meaning of Article 2 of Directive 2001/29. Infopaq points out that Directive 2001/29 does not lay down a minimum threshold for the number of words below which there is no longer reproduction in part, even though such a de minimis threshold must in any case exist. Infopaq considers that the 11 words which are stored and printed do not go beyond the particular minimum number which is the prerequisite for the existence of a reproduction in part.

23. The Commission and DDF on the contrary take the view that the storing and subsequent printing of an extract from the text of a newspaper article which contains the search word and the five words which precede and which follow it are acts of reproduction which are protected by Article 2 of Directive 2001/29.

24. The Commission considers that the storing and printing of an extract from an article are forms of reproduction. It states that it is apparent from Article 2 of Directive 2001/29 that the exclusive reproduction right of authors covers also reproduction in part and that an extract of an article consisting of 11 words constitutes reproduction in part within the meaning of that article.

25. DDF states, like the Commission, that the storing and printing of an extract from an article consisting of 11 words constitutes reproduction in part within the meaning of Article 2 of Directive 2001/29. DDF points out that when the search words appear a number of times in an article, large parts of that article will be reproduced; to illustrate this point it submits an article in which two search words with the five words which precede and follow them are underlined. It disagrees with the position of the Austrian Government, (12) that the part of the work of the author which is reproduced must in itself fulfil the conditions in that regard in order that it can be defined as a work. It considers that the fact that the meaning and the conditions for the existence of a work are not harmonised in Directive 2001/29 does not prohibit the Court from interpreting the meaning of reproduction in part of a work. The assessment of the question of whether in this case there is reproduction in part of a work must take place independently of the conditions laid down by national law for the existence of a work.

26. The Austrian Government takes the view that Article 2 of Directive 2001/29 certainly gives authors the exclusive right of reproduction in part of the work, but it does not define the meaning of work nor give guidelines as to the specific circumstances under which such a work is protected. In so far as the conditions governing the protection of works are not harmonised by Community law, it is necessary according to the Austrian Government to assess them on the basis of national law. Taking account of that fact, the Austrian Government points out that the part of the work which is reproduced must fulfil in itself the conditions required for it to be defined as a work.

B – Second to twelfth questions referred

27. Infopaq and the Austrian Government consider that the process of production of extracts from articles must be considered as a temporary act of reproduction within the meaning of Article 5(1) of Directive 2001/29; this process is permissible as it fulfils all of the conditions laid down by that article: first, because a transient act is involved, secondly, because that act is an integral and essential part of the technological process, thirdly, because its sole purpose is to allow the lawful use of the work or of the subject-matter of related rights and, fourthly, because that act has no independent economic significance.

28. Infopaq states with regard to the first condition, (‘transient’ act) that Article 5(1) of Directive 2001/29 is not limited only to temporary acts of reproduction in the form of browsing and the making of ‘cache’ copies. The condition that the act must be ‘transient’ only concerns the duration of the temporary act of reproduction and acts of reproduction the duration of which is less than or equal to 30 seconds must be considered as ‘transient’.

29. Concerning the second condition (‘integral and essential part of a technological process’), Infopaq considers that it can clearly be seen from the meaning of integral part that the stage of the technological process at which the temporary act of reproduction takes place is irrelevant.

30. Concerning the third condition (‘lawful use’), Infopaq states that it does not follow from Article 5(1), nor from recital 33 in the preamble to Directive 2001/29, that ‘lawful use’ means only use of the Internet in the form of browsing and the making of ‘cache’ copies. ‘Lawful use’ means any use of a work in respect of which the consent of the copyright holder is not necessary. Moreover it is not important as regards ‘lawful use’ to know who uses the work; this can be the end-user or any other person. The decisive factor for the reply to the question of whether there is ‘lawful use’ is whether in the context of the proceedings in question an original of the publication is being used which was obtained lawfully.

31. Concerning the fourth condition (‘independent economic significance’), Infopaq states that the question of independent economic significance must be considered from the point of view of the author. Moreover, as regards that condition, it is sufficient to find whether the temporary act of reproduction has an independent economic significance and not whether the whole technological process has such a significance. Infopaq points out that the final purpose of the technological process which it uses is the production of summaries which is in itself lawful and does not infringe the copyright of the publications; the temporary acts of reproduction in the form of image files and text files do not, in themselves, have independent economic significance for the rightholders. If the ‘independent economic significance’ were contingent on the copyright holder’s not receiving remuneration, there would, according to Infopaq, be a contradiction with the purpose of Article 5(1) of Directive 2001/29.

32. The Austrian Government, like Infopaq, believes that the conditions of Article 5(1) of Directive 2001/29 are fulfilled and states that these conditions are not limited to intermediate copies which are stored during transmission between the different programmes (software) on the Internet. In its opinion, the creation of an image file and its conversion into a text file are ‘transient’ acts because these reproductions are of short duration; these acts are at the same time also an ‘integral and essential part of a technological process’. The Austrian Government also considers that the use of the works is ‘lawful’ because the extracts from newspaper articles do not fulfil the conditions for copyright protection. The process used by Infopaq has the sole purpose of producing extracts from newspaper articles on the basis of search words, for which reason they do not, according to the Austrian Government, have ‘independent economic significance’.

33. DDF and the Commission consider on the contrary that the conditions of Article 5(1) of Directive 2001/29 are not fulfilled.

34. DDF states that Article 5(1) of Directive 2001/29 must be interpreted in the light of the purpose of that Directive and refers in this respect to recitals 9 and 10 in the preamble to the Directive, from which it is apparent that its purpose is to ensure a high level of protection for authors who must receive appropriate reward for the use of their works. The provisions of the Directive which ensure that protection must be interpreted widely, whilst the provisions which provide for exceptions to that protection must be interpreted strictly.

35. DDF considers concerning the first condition (‘transient’ act), that the acts of reproduction are not transient because the reproductions are lasting and are not deleted, while the definition of ‘transient’ means that the reproductions are of short duration.

36. Concerning the second condition (‘integral and essential part of a technological process’), DDF states that the purpose of that condition is to exclude reproductions which are automatically produced in the context of such a process. In the present case, the reproductions are not however produced automatically because the scanning of the articles and conversion of an image file into a text file are only a transient stage in the technical processing of these texts. This is therefore not an intermediate technological process. Moreover, the reproduction of 11 words is not an ‘integral and essential part of a technological process’ because those 11 words are printed out.

37. Concerning the third condition (‘lawful use’), DDF is of the view that use which would otherwise be unlawful cannot become lawful under Article 5(1) of Directive 2001/29. According to DDF, the present case concerns an unlawful use.

38. Concerning the fourth condition (‘independent economic significance’), DDF points out that this condition concerns the fact that the use of the reproduction in the present case cannot have independent economic significance either for the user (namely Infopaq) or for the rightholder. DDF states that the reproductions have independent economic significance for Infopaq because it would require DKK 2 to 4 million if the reproduction work was manual rather than automated. The reproductions also have independent economic significance for DDF’s members because they could receive increased remuneration through the granting of licences for the reproduction of their works.

39. The Commission likewise considers that in the present case the conditions of Article 5(1) of Directive 2001/29 are not fulfilled.

40. Concerning the first condition (‘transient’ act), the Commission is of the view that temporary acts of reproduction are transient if their duration is short, for example a reproduction made during browsing on the Internet. The Commission considers that it is necessary, when deciding whether acts of reproduction are transient, to take into account the technological process in the context of which the reproduction takes place and in particular whether a lasting reproduction has been made or not during that process. In the context of the process used by Infopaq, a lasting reproduction consisting of the 11 printed words has been made and consequently the fact that the image and text files created are deleted when the 11 words are printed does not mean that the act of reproduction is transient. The Commission further points out that the fact that the part of the reproduction which contains one or several extracts of 11 words is printed is irrelevant in assessing whether the temporary act of reproduction can be considered as transient.

41. Concerning the second condition (‘integral and essential part of a technological process’), the Commission believes that the stage of the technological process during which the temporary acts of reproduction are made is irrelevant to whether they must be considered as an ‘integral and essential part of a technological process’. The Commission points out that Infopaq physically checks the reproduction several times during the process and that it may have copies stored in paper or electronic form for a long time after having sent the extracts to its customers. The electronic copies moreover allow use which goes beyond simple electronic transmission in a network; in the present case, the electronic copies are in fact the basis for the creation of the text files. The Commission also considers that those temporary acts of reproduction cannot be an ‘integral and essential part of a technological process’ if they cover manual scanning of entire newspaper articles whereby the latter are converted from a printed medium into a digital medium as this procedure goes well beyond what is necessary to produce an extract. The Commission is also of the view that printing of an extract is not a temporary act of reproduction and therefore cannot be an ‘integral and essential part of a technological process’.

42. Concerning the third condition (‘lawful use’), the Commission is of the view that ‘lawful use’ does not only cover all types of use which do not require the copyright holder’s consent but on the contrary also types of use which the rightholder authorises or which are not covered by the exclusive right of the copyright holder or fall within the exceptions to the exclusive right. It also states that the process for the production of extracts used by Infopaq is not a lawful use of the works because it involves modification of the work with the objective of creating a short text extract.

43. Concerning the fourth condition (‘independent economic significance’), the Commission points out that the criteria for assessing that condition stem from recital 33 in the preamble to Directive 2001/29 and that pursuant thereto acts of reproduction do not have ‘independent economic significance’ if they do not modify the information and if they do not interfere with lawful use of the technology which is widely recognised and used by industry to obtain data on the use of the information. The Commission also considers that the process used by Infopaq allows it to increase its productivity because such production of extracts is much quicker and cheaper; according to the Commission it is necessary to take ac count of this fact when assessing whether the acts have ‘independent economic significance’.

C – Thirteenth question referred

44. Infopaq considers concerning the thirteenth question that Article 5(5) of Directive 2001/29 does not lay down independent conditions which could be fulfilled in addition to the conditions of Article 5(1) of that directive; if the conditions of Article 5(1) are fulfilled, it is not necessary to examine the conditions of Article 5(5) of the Directive.

45. The Austrian Government considers that the conditions of Article 5(5) of Directive 2001/29 are fulfilled, but it does not provide reasons for its position.

46. DDF considers concerning the thirteenth question that the acts of reproduction do not fulfil the conditions of Article 5(5) of Directive 2001/29. Infopaq uses those acts of reproduction to reduce its costs vis-à-vis its competitors. According to DDF, acts of reproduction are moreover so extensive and significant that they cannot be regarded as normal exploitation of a work; they unreasonably prejudice the legitimate interests of copyright holders who could obtain remuneration by granting licences authorising such a use.

47. The Commission considers that in principle it is unnecessary to reply to the thirteenth question because Infopaq’s activities do not fall within the exception in Article 5(1) of Directive 2001/29, but it nevertheless offers a reply to that question. It states that Article 5(5), known as the ‘three-step test’, is comparable to Article 13 of the TRIPS Agreement. The Commission points out that in principle the ‘three-step test’ of Article 5(5) must be applied separately from the assessment on the basis of Article 5(1), and that the condition of Article 5(5) which concerns ‘normal exploitation of the work’ is similar to the condition of Article 5(1) of Directive 2001/29 according to which the temporary act of reproduction must have ‘independent economic significance.’ The fundamental question as regards the two conditions referred to is therefore whether the acts of reproduction allow the electronic transmission of data without independent economic significance or whether they add such a significance which goes beyond the transmission of data. In so far as the acts of reproduction in the present case do have economic significance for Infopaq, this is not a matter of normal exploitation of a work, for which reason the conditions of Article 5(5) are not fulfilled in the Commission’s view.

VI – Assessment of the Advocate General

A – Introduction

48. The present case concerns the interpretation of the scope of the reproduction right and the exceptions and limitations to the reproduction right as regulated by Directive 2001/29, which harmonises certain aspects of copyright and related rights in the information society. (13) The reproduction right represents the essence of copyright, (14) the author’s exclusive right to authorise or prohibit the reproduction of his work. The scope of the author’s exclusive right vis-à-vis the reproduction depends on the scope of the definition of reproduction of a work.

49. In the past it was easier to define reproduction, given the limited number of methods of reproduction, (15) but with the development of information technology and the possibility of digital reproduction, there are now more possibilities of easier and faster reproduction. Because reproduction is easier and faster it is necessary, on the one hand, to ensure adequate protection of copyright; that protection must however and on the other hand be flexible enough not to hinder the development or the normal functioning of the new technologies. (16) In order to reply to the questions referred in the present case, it is necessary to take as a basis an appropriate balance between protection of copyright which is sufficiently high and at the same time sufficiently flexible.

50. The questions referred by the national court in the present case can be classified into three categories which will also be followed in the structure of this Opinion. The first category, which covers the first question referred, concerns the interpretation of the concept of ‘reproduction’ contained in Article 2 of Directive 2001/29. The second category, which covers the second to twelfth questions referred, concerns the interpretation of the exception to the reproduction right in Article 5(1) of that directive which, under certain conditions, authorises a temporary act of reproduction. The third category, which covers the thirteenth question referred, concerns the interpretation of Article 5(5) of the Directive, under which the exceptions and limitations to the right of reproduction can only apply in certain special cases which are not contrary to a normal exploitation of a work or other subject-matter and do not unreasonably prejudice the legitimate interests of the rightholder.

51. In this Opinion, I will first briefly set out the essential characteristics of the process of production of extracts from newspaper articles before replying to the questions referred in the context of the analysis of the three categories.

B – Essential characteristics of the process for the production of extracts from newspaper articles used by Infopaq

52. As stated by the national court, it is undisputed in the present case that the process for the production of newspaper articles (that is, the ‘data capture process’), as used by Infopaq, undoubtedly covers two acts of reproduction, namely (1) the creation of an image file on the basis of the scanning of newspaper articles and (2) the conversion of the image file into a text file. However, there is no consensus on whether the reproduction also covers (3) the storing of each search word with the five words which precede and follow it and (4) the printing of those 11 words.

53. I will therefore deal below with the question whether the storing of the search word with the five words which precede and follow it and the printing of these 11 words constitutes reproduction within the meaning of Article 2 of Directive 2001/29.

C – Interpretation of Article 2 of Directive 2001/29 (first question referred)

54. By its first question, the national court asks essentially if the storing and subsequent printing of an extract from the text of a newspaper article containing the search word and the five words which precede and follow it can be considered as a reproduction within the meaning of Article 2 of Directive 2001/29.

55. Article 2 of Directive 2001/29 provides that Member States must 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’ for authors and for their works. It follows therefore from this article that the reproduction of works is not possible without the authorisation of the author, irrespective of whether reproduction of all or part of those works is at issue. Article 2 of Directive 2001/29 does not however define ‘reproduction’ just as it does not define when and under what conditions reproduction is ‘partial’; for this reason I will examine the two concepts in the context of the analysis of the first question.

56. As is apparent from the case-law of the Court of Justice, it is necessary, when defining the concepts of ‘reproduction’ and ‘reproduction in part’, to take into account the fact that the requirement of uniform application of Community law means that the concepts and conditions of provisions of Community law must be given an autonomous and uniform interpretation throughout the Community where, as in the case of the provisions of Directive 2001/29, there is no express reference to the law of the Member States for the purpose of determining their meaning and scope. (17) Given this requirement, I believe that ‘reproduction’ of a work can de defined as fixation of the work in a given information medium. (18) ‘Reproduction in part’ can then be understood as fixation of part only of a work in a given information medium.

57. It is apparent moreover from the wording of Article 2 of the Directive that the concept of ‘reproduction’ should be construed broadly because it covers reproduction which is ‘direct or indirect’ and ‘temporary or permanent’, and reproduction ‘by any means and in any form’ and ‘in whole or in part’. The requirement for a broad interpretation also follows from recital 21 in the preamble to that directive, which provides that the Directive must define ‘the scope of the acts covered by the reproduction right with regard to the different beneficiaries’ and that ‘a broad definition of these acts is needed to ensure legal certainty within the internal market’. The broad definition of reproduction is necessary to ensure the high level of protection of copyright which Directive 2001/29 seeks to establish. (19) An argument in favour of a broad interpretation of ‘reproduction in part’ can also be derived from the broad interpretation of ‘reproduction’, if ‘reproduction’ is interpreted broadly it is necessary a maiori ad minus to interpret broadly all types of reproduction, including reproduction in part because only in this way can a high level of protection of copyright be ensured.

58. The interpretation of ‘reproduction in part’ must not however be an absurd or excessively technical one according to which any form of reproduction of a work would be included no matter how minimal or insignificant a fragment of the work it is. I believe it is necessary, in interpreting that concept, to strike a balance between a technically inspired interpretation and the fact that the reproduction in part must also have a content, a distinctive character and – as part of a given work – a certain intellectual value, for which reason it is necessary to give it copyright protection. I consider that, to determine whether in a given case there is reproduction in part, it is appropriate to take two aspects into account. First, it is necessary to establish whether the reproduction in part is actually identical to a part of the original of the work (element of identification). In the case of reproduction in part of a newspaper article, that means specifically that it is necessary to determine whether the same words are found in the reproduction as in the newspaper article and whether those words are in the same order. Second, it must be established whether one can, on the basis of the reproduction in part, recognise the content of the work or determine with certainty that it is an exact reproduction in part of a given work (element of recognition). In the case of reproduction in part of a newspaper article, that means that one can establish with certainty that the reproduced extract in question is indeed taken from a given newspaper article. (20) One cannot therefore define reproduction in part in a strictly quantitative manner (21) or on the basis of a de minimis criterion, which would determine in a precise manner what percentage of a work must be reproduced in order to constitute reproduction in part or, in the present case, how many words of a given work suffice to constitute reproduction in part. (22) The existence of reproduction in part must be established on an individual basis.

59. According to the criteria laid down in point 58, I believe that in the present case the storing and subsequent printing of an extract from a text from a newspaper article which includes the search word and the five words which precede and follow it can be defined as reproduction in part of that article within the meaning of Article 2 of Directive 2001/29. Both the criterion of identification and the criterion of recognition are in fact fulfilled.

60. First, in the present case, the 11 words which are printed in the extract are the same as the 11 words in the newspaper article; their order is also the same as in the article. Secondly, the sequence of 11 words is in my opinion long enough – comparing the extract with the newspaper article – to allow it to be stated that that sequence of words in the extract indeed comes from a given newspaper article. It must be emphasised that, in the present case, the extracts composed of the search word and the five words which precede and follow it have precisely the purpose of facilitating for the reader the location of the search word in the article. (23)

61. It must moreover be noted in the present case that Infopaq prints, for each article, the search word and the five words which precede and follow it each time that the word appears in the article. Thus, as DDF rightly points out, (24) most of a newspaper article may therefore be printed which undoubtedly means reproduction in part of that article within the meaning of Article 2 of Directive 2001/29.

62. In view of the arguments put forward, in my view the reply to the first question referred is that the storing and subsequent printing of an extract from a newspaper article which contains the search word and the five words which precede and follow it must be considered as a reproduction within the meaning of Article 2 of Directive 2001/29.

D – Interpretation of Article 5(1) of Directive 2001/29 (second to twelfth questions referred)

63. The national court asks several questions concerning the interpretation of Article 5(1) of Directive 2001/29, for which reason I will consider them together. These are the second to twelfth questions referred by which the national court asks essentially whether the process of production of extracts from newspaper articles as used by Infopaq may be applied without the authorisation of the copyright holders as it falls within the exception laid down in Article 5(1) of Directive 2001/29, which under certain conditions exempts temporary acts of reproduction from the reproduction right.

64. In the context of the following line of argument, I will first set out the content and the purpose of Article 5(1) of Directive 2001/29, before analysing the individual conditions in that article and the questions pertaining thereto.

1. Content and purpose of Article 5(1) of Directive 2001/29

65. Directive 2001/29 provides in Article 5(1) for an exception to the reproduction right for certain temporary acts of reproduction. Under Article 5(1), acts of reproduction which fulfil the following conditions are exempted from the reproduction right:

– the act of reproduction must be temporary;

– that temporary act of reproduction must also fulfil the four following conditions: first, it must be transient or incidental, secondly, it must be an integral and essential part of a technological process, thirdly, its only purpose must be to enable either a transmission in a network between third parties by an intermediary, or a lawful use of a work or of related rights and, fourthly, the act must have no independent economic significance.

66. The exception in Article 5(1) was included in Directive 2001/29 in order to exclude from the broad definition of reproduction right certain temporary acts of reproduction which are an integral part of a technological process; their sole purpose is to enable another form of use of a given work. (25) Recital 33 in the preamble to Directive 2001/29 gives as examples of temporary acts of reproduction which must be excluded from the reproduction right browsing and the making of ‘cache’ copies including those which enable transmission systems to function effectively. (26) Those acts of reproduction are authorised according to that recital ‘provided that the intermediary does not modify the information and does not interfere with the lawful use of technology, widely recognised and used by industry, to obtain data on the use of the information’. If such acts were not excluded from the broad definition of the reproduction right, that would mean that in the case of new technologies it would be necessary to obtain the authorisation of the copyright holder for any reproduction even if it was of short duration and technically necessary. (27) In practice, that would mean for example that it would be necessary to obtain the authorisation of the copyright holder for each act of caching, (28) which allows the normal use of information technology and the Internet thanks to the automatic creation of temporary copies of digital data. (29) Having regard to the foregoing, I would like to clarify that the exception in Article 5(1) of Directive 2001/29 does not concern only temporary acts of reproduction which take place on the Internet, but on the contrary all acts of reproduction which fulfil the general conditions referred to in that article. (30)

67. I also note that, in the context of the analysis of Article 5(1) of Directive 2001/29, it is necessary to clearly distinguish between, on the one hand, temporary acts of reproduction in respect of which it is necessary to examine whether they fulfil the conditions of that article and, on the other hand, the forms of use of a given work which those acts make possible. Thus, for example, acts of caching enable Internet users to read and inform themselves as to the content of the network. The temporary storing in the RAM memory of a computer (31) allows the user to create a copy of an audio or video recording. In the analysis of the basis of Article 5(1) of Directive 2001/29, it is always necessary to distinguish between temporary acts of reproduction and the final form of use of a given work which these temporary acts of reproduction make possible. That distinction will be particularly important for the analysis of the third condition of Article 5(1), pursuant to which temporary acts of reproduction must enable lawful use of the work. (32)

2. Condition for the application of Article 5(1): temporary acts of reproduction

68. It is clear from Article 5(1) of Directive 2001/29 that the exception provided for therein authorises only temporary acts of reproduction. The condition for the application of that exception is that a given act of reproduction is temporary; I will examine whether that temporary act of reproduction also fulfils the other conditions of that article. Before examining whether the process for the production of extracts from newspaper articles used by Infopaq fulfils the individual conditions of that article, I must therefore examine which acts of reproduction of that process could even be defined as temporary acts of reproduction.

69. A number of acts of reproduction can be identified in the process of production of extracts from newspaper articles as used by Infopaq. The newspaper articles are first scanned, creating an image file which is then converted into a text file; it is clear from the facts that the image file is deleted after having been converted into a text file, the latter is deleted after the production of the extract from the newspaper article. The search words from the newspaper articles processed in this way and the five words which precede and follow them are then stored and printed.

70. The scanning and conversion of the image file into a text file are therefore only preparatory acts for the storing and printing of an extract of 11 words from a newspaper article. The image and text files are deleted during the process or directly afterwards, at the end of the process for the production of extracts. The scanning and the conversion of the image file into a text file can therefore, in my opinion, be defined as temporary acts of reproduction.

71. Concerning the question whether the storing of an extract of 11 words from a newspaper article can be defined as a temporary act of reproduction, in my opinion there is not enough information in the order for reference. The national court, in its order, states merely that the search word and the five words which precede and follow it are stored, (33) but it does not indicate for how long those words remain stored in the computer’s memory. That fact should therefore be clarified by the national court.

72. However one defines the storing of the extracts of 11 words, the printing of that article cannot in my opinion be defined as a temporary act of reproduction. The printing on paper must in fact be treated as a lasting reproduction. (34) Lasting reproduction does not, of course, mean unlimited in time because it may be destroyed, but the user of that reproduction alone decides when to destroy it. I note concerning the printing of the extract that this is not an act which only enables another use of the work, the situation which the exception provided for in Article 5(1) of Directive 2001/29 is aimed at. The printing of an extract from a newspaper article is the final reproduction in the process for the production of extracts as applied by Infopaq, for which reason, in the present case, it is particularly important to know whether the final reproduction is a lawful use of the work, (35) which the temporary acts of reproduction, carried out in the context of that process, make possible.

73. I will examine below whether the scanning of articles, the conversion of image files and text files and the storing of extracts of 11 words which enable the printing of extracts of 11 words fulfil the conditions of Article 5(1).

3. Examination of the four conditions of Article 5(1) of Directive 2001/29

a) First condition: temporary acts (second to fifth questions)

74. The first condition that a temporary act of reproduction must fulfil in the context of Article 5(1) is that it must be transient or incidental. As the national court’s questions in fact concern only whether the acts of reproduction in the present case are transient acts, I will limit myself to the interpretation of that condition and will not analyse whether these acts are incidental. The second to fifth questions referred concern the interpretation of the condition of transient act.

75. The national court has expressed the second question in such a way that it asks whether the circumstances under which temporary acts of reproduction take place are relevant to whether they can be regarded as transient within the meaning of Article 5(1) of Directive 2001/29. It does not specify however in the order for reference to which circumstances the question refers. It is not clear whether the national court has in mind the forms of reproduction (by scanner, Optical Character Recognition software and storage), the duration of existence of the reproduction or other circumstances. As I do not know precisely to which circumstances the national court refers and cannot therefore provide a simple affirmative or negative answer to the question, it seems appropriate to reformulate it in order to be able to offer a useful response.

76. It is therefore necessary to reformulate the second question in such a way that the national court asks which circumstances are relevant for the purposes of determining whether given temporary acts of reproduction can be considered as transient within the meaning of Article 5(1) of Directive 2001/29.

77. By its third question, the national court asks whether a temporary act of reproduction can be regarded as transient within the meaning of Article 5(1) of Directive 2001/29, if the reproduction is produced by the processing of a text file on the basis of an image file or by a search for text strings on the basis of a text file. The third question must also be partially reformulated as the national court asks whether an act of reproduction is temporary if the reproduction is produced by a search for ‘text strings on the basis of a text file’. As the mere search for text strings is not a reproduction, it is necessary to understand by the third question that the national court asks whether a temporary act of reproduction can be considered as transient if the reproduction is produced for example by the processing of a text file on the basis of an image file.

78. By its fourth question, the national court asks essentially whether a temporary act of reproduction (36) can be considered as transient within the meaning of Article 5(1) of Directive 2001/29 if part of the reproduction, consisting of one or more text extracts of 11 words, is stored.

79. By its fifth question, the national court asks essentially whether an act of reproduction can be considered as transient within the meaning of Article 5(1) of Directive 2001/29 if part of the reproduction, consisting of one or more text extracts of 11 words, is printed.

80. To reply to these questions, it is first necessary to examine the significance of the fact that a temporary act of reproduction is transient.

81. An act of reproduction is transient in my opinion where the reproduction only exists for a very short period. (37) Of course, the question which immediately arises is what the difference is between a transient act of reproduction and a temporary act of reproduction. In my view, the difference is that a transient act of reproduction lasts for a very brief period while a temporary act of reproduction can last for a longer period. (38) Transient acts of reproduction are therefore temporary acts of reproduction which last for an exceptionally short time, which are ephemeral and which at the same time disappear after arising. (39) The duration of temporary acts of reproduction is certainly limited in time but can be longer than the duration of transient acts of reproduction. (40) It is of course very difficult, if not completely impossible, to determine exactly from the outset for how long a reproduction must exist for it to be definable as transient; that must be determined on a case-by-case basis and taking into account all of the circumstances of the case.

82. In my view the answer to the second question referred is therefore that the decisive factor which is relevant to whether a given act of reproduction can be considered as transient within the meaning of Article 5(1) of Directive 2001/29 is that the reproduction only lasts for a very brief period, even if it is necessary during the assessment to take into account all of the circumstances of the individual case.

83. In the present case, the image file which is created during the scanning of the newspaper article, like the text file which is created when the image file is converted, is subsequently deleted when the extract from the newspaper article is produced. Infopaq states in its written observations that the required duration is, at the most, 30 seconds. In my view, it can be found in the present case, on the basis of the fact that the required duration is exceptionally short and that the two files are deleted, that transient acts of reproduction are involved.

84. The answer to the third question referred must in my view therefore be that if a temporary act of reproduction is carried out by processing a text file on the basis of an image file and if those two files are deleted, in circumstances such as those of the present case, that act of reproduction must be considered as transient within the meaning of Article 5(1) of Directive 2001/29.

85. Concerning the storing of an extract from a newspaper article, I have already indicated at point 71 of this Opinion that the national court, in its order, does not state for how long the extract of 11 words is stored.

86. The answer to the fourth question referred must in my view therefore be that the national court must, on the basis of the criteria laid down in the reply to the second question referred, determine whether the act of reproduction can be considered as transient within the meaning of Article 5(1) of Directive 2001/29, where part of the reproduction which consists of one or more extracts of 11 words is stored.

87. Concerning the printing of an extract from a newspaper article, I have already indicated at point 72 of this Opinion that in that case the act of reproduction is not temporary and that act cannot therefore a fortiori be considered as a transient act of reproduction.

88. In my view the answer to the fifth question referred should therefore be that an act of reproduction cannot be considered as transient within the meaning of Article 5(1) of Directive 2001/29 if, in circumstances such as those of the present case, part of the reproduction which consists of one or more extracts of 11 words is printed.

b) Second condition: integral and essential part of a technological process (sixth, seventh and eighth questions)

89. The second condition which must be fulfilled by a temporary act of reproduction in the context of Article 5(1) is that it must be an integral and essential part of a technological process. The interpretation of that condition in connection with the scanning and conversion of an image file into a text file is the subject of the sixth and seventh questions referred, while the eighth question referred concerns the printing of an extract from a newspaper article. The national court does not ask explicitly whether the storing of an extract from a newspaper article is also an integral and essential part of a technological process.

90. By its sixth question, the national court asks essentially whether the stage of the technological process at which temporary acts of reproduction take place is relevant to whether they can be considered as an integral and essential part of a technological process within the meaning of Article 5(1) of Directive 2001/29.

91. By its seventh question, the national court asks essentially whether temporary acts of reproduction can be an integral and essential part of a technological process within the meaning of Article 5(1) of Directive 2001/29, if they cover manual scanning of entire newspaper articles whereby the latter are transformed from a printed medium into a digital medium.

92. By its eighth question, the national court asks essentially whether temporary acts of reproduction can be an integral and essential part of a technological process within the meaning of Article 5(1) of Directive 2001/29 if they consist of a printed reproduction which contains one or more text extracts of 11 words.

93. For the reply to the sixth and seventh questions, it is first necessary to examine when a given act of reproduction is an integral and essential part of a technological process. (41) It should in particular be examined to what extent the interpretation of the condition that the temporary act of reproduction must be an integral and essential part of a technological process must be restrictive. It is apparent from legal commentators that the fundamental dilemma when interpreting that condition is whether the act of reproduction constitutes an integral and essential part of a technological process only when that act is a necessary element of the technological process and therefore without which that technological process would not be possible, or whether other acts which are not a necessary element of that technological process also fall within that category. (42)

94. In my opinion – and in that of the majority of legal commentators (43) – it is not necessary for the act of reproduction to be an indispensable element of a given technological process for it to constitute its integral and essential part. This may be seen from the explanatory memorandum to the proposal for Directive 2001/29, in which the Commission states that the purpose of Article 5(1) is to exclude temporary acts of reproduction ‘which technology dictates’. (44) It may also be deduced that the stage of the technological process at which the temporary act of reproduction takes place is irrelevant.

95. The answer to the sixth question referred must in my view therefore be that the stage of the technological process at which temporary acts of reproduction take place is irrelevant to whether they constitute an integral and essential part of a technological process within the meaning of Article 5(1) of Directive 2001/29.

96. To reply to the seventh question in this case, it is necessary to examine what, in the context of the process for the production of extracts from newspaper articles, constitutes a technological process. Does technological process cover only the scanning and the conversion of the image file into a text file or on the contrary does it cover the entire process for the production of extracts from newspaper articles?

97. In my view, the technological process in this case covers the entire process for the production of extracts from newspaper articles. The scanning and the conversion of the image file into a text file, and the storing and printing of the search word with the five words preceding and following it therefore fall within that process. All of the elements mentioned are therefore part of the same technological process. From that point of view, the scanning of articles and the conversion of the image file into a text file are in any case an integral and essential part of the technological process.

98. The answer to the seventh question referred must in my view therefore be that where temporary acts of reproduction consist of manual scanning of entire newspaper articles whereby the latter are transformed from a printed medium into a digital medium, in circumstances such as those of the present case, those acts of reproduction constitute an integral and essential part of a technological process within the meaning of Article 5(1) of Directive 2001/29.

99. To reply to the eighth question, it is necessary to clarify whether the printing of a reproduction consisting of one or more text extracts of 11 words can be an integral and essential part of a technological process within the meaning of Article 5(1) of Directive 2001/29. As I have already indicated at point 97 of this Opinion, the printing of an extract from a newspaper article must in principle also be considered as an integral and essential part of a technological process. It must however be noted in that respect that printing is not a temporary act of reproduction, for which reason it does not fulfil the condition for the application of Article 5(1) of Directive 2001/29.

100. The answer to the eighth question referred must in my view therefore be that, in circumstances such as those of the present case, the printing of an extract is not a temporary act of reproduction, for which reason it cannot fall within Article 5(1) of Directive 2001/29 and consequently it is irrelevant whether that act of reproduction can be an integral and essential part of a technological process.

c) Third condition: acts the purpose of which is to enable a lawful use (ninth and tenth questions)

101. The third condition of Article 5(1) requires that the sole purpose of the temporary act of reproduction is to enable either transmission in a network between third parties thanks to an intermediary, or a lawful use of the work. As it is clear that in the present case there is no transmission in a network, and as the question referred only concerns the part of the third condition which concerns lawful use of the work, I will concentrate in my analysis on examining the condition of lawful use. The ninth and tenth questions referred concern the condition of lawful use.

i) General remarks on the condition of lawful use (ninth question)

102. By its ninth question, the national court asks whether lawful use of a work within the meaning of Article 5(1) of Directive 2001/29 covers any form of use of a work which does not require the copyright holder’s consent.

103. To reply to the ninth question referred, it is necessary to clarify the meaning of the condition of lawful use of a work within the meaning of Article 5(1) of Directive 2001/29.

104. It is apparent from recital 33 in the preamble to Directive 2001/29 that the use of a work is considered to be lawful (45) ‘where it is authorised by the rightholder or not restricted by law’. It may be concluded on the basis of that recital that the use of a work is lawful in three cases. First, the use is lawful where it is a form of use of a work for which the copyright holder’s authorisation is not required – for example the reading of newspaper articles. If however there is use of a work in a form of reproduction such as that in the present case or another form of use for which in principle the copyright holder’s authorisation is required, (46) the use is lawful; secondly, if the copyright holder has explicitly authorised the use; or, thirdly , if that use is authorised pursuant to one of the exceptions and limitations laid down in Article 5(2) and (3) (47) of Directive 2001/29, if the Member State in question has transposed that exception or limitation into national law and if it meets the requirements of Article 5(5) of the Directive.

105. The answer to the ninth question referred in my opinion is therefore that the lawful use of a work within the meaning of Article 5(1) of Directive 2001/29 covers any form of use of a work which does not require the copyright holder’s consent or which is explicitly authorised by the copyright holder; in the event of use of a work in the form of a reproduction, the copyright holder’s consent is not required if the reproduction is authorised on the basis of one of the exceptions laid down by Article 5(2) and (3) of Directive 2001/29, if the Member State concerned has transposed that exception or limitation into national law and if the reproduction meets the requirements of Article 5(5) of Directive 2001/29.

ii) Lawful use in the present case (tenth question)

106. By its tenth question, the national court asks whether the lawful use of a work within the meaning of Article 5(1) of Directive 2001/29 covers the scanning by a commercial business of entire newspaper articles, the subsequent processing of the reproduction and the storing and possible printing of the reproduction consisting of one or more text extracts of 11 words, for use in the business’s summary writing, even where the copyright holder has not authorised that activity. The tenth question must in my view be reformulated, (48) and I will therefore set out below the reasons for the reformulation.

– Reformulation of the tenth question

107. The tenth question referred is set out in such a way that the condition of lawful use concerns all of the acts of reproduction which take place during the process of production of extracts from newspaper articles used by Infopaq. Formulated in this way, the question referred follows from a misunderstanding of Article 5(1) of Directive 2001/29. In fact the condition of lawful use of a work cannot be interpreted as meaning that the temporary acts of reproduction must constitute in themselves a lawful use of the work; that condition must on the contrary be understood as meaning that the temporary acts of reproduction must enable another use of the work which must itself be lawful. To take an example: if an education establishment makes a copy during a course and for illustration purposes – that is, a reproduction – of a given work, such as a video recording of an educational programme, and during that act of reproduction a copy of the video recording is temporarily registered in the RAM memory of the computer, that temporary copy which is created in the RAM memory enables a reproduction for illustration purposes during the course which is lawful pursuant to Article 5(3)(a) of Directive 2001/29. (49) The temporary copy which is created in the RAM memory is however lawful only if all of the other conditions of Article 5(1) of Directive 2001/29 are fulfilled, that is, if it is transient or incidental, if it is an integral and essential part of a technological process and if it has no independent economic significance. If the condition of lawful use of Article 5(1) of Directive 2001/29 were to be interpreted as meaning that the temporary act of reproduction had to be a lawful use, that would mean that, for the purposes of the lawfulness of that temporary act of reproduction, the other conditions of that article would no longer need to be fulfilled and Article 5(1) of Directive 2001/29 would be devoid of purpose.

108. When analysing Article 5(1) of Directive 2001/29, it is therefore necessary to clearly distinguish between the temporary acts of reproduction which must fulfil all of the conditions of that article and the final act of reproduction or another form of use of the work which those temporary acts of reproduction make possible and which must constitute a lawful use of the work. In the present case, the use of the work, that is, the newspaper article, takes the form of the printing of an extract from a newspaper article composed of 11 words.

109. It is not explicitly indicated in the order for reference whether those extracts from newspaper articles are used as an internal basis for the drafting of summaries of newspaper articles or only to assist in the choice of newspaper articles summaries of which are drawn up. There is no information in the order for reference as to the method of production of summaries or whether they may contain a word-for-word quotation of the extract of 11 words. As the facts are not clear, it cannot be ruled out that Infopaq sends the extracts of 11 words directly to its customers, thus allowing them to deduce from the context which newspaper articles would be of interest to them. In any case, the extracts of 11 words are used in that way or in another in the context of Infopaq’s commercial activity of drawing up summaries of newspaper articles.

110. Apart from that, it cannot in my view be claimed in the present case that the drawing up of summaries, which Infopaq sends to its customers, constitutes a use of the work and that the condition of lawful use of the work within the meaning of Article 5(1) of Directive 2001/29 is fulfilled, to the extent that the drawing up of summaries is permissible under Danish law. One cannot understand from the present case that the process of production of extracts from newspaper articles, as used by Infopaq, makes possible the drawing up of summaries. It is certainly true that the process for the production of those extracts simplifies, probably to a significant extent, the drawing up of summaries, but it cannot be maintained that it makes it possible . Infopaq could also produce summaries of press articles entirely without the use of the extracts of 11 words prepared beforehand. The drawing up of summaries is moreover not necessarily the consequence of the process for the production of the extracts of 11 words, for which reason one cannot interpret the drawing up of summaries as the last stage of the process for the production of the extracts which the latter makes possible .

111. The tenth question referred must therefore be understood as meaning that the national court asks essentially whether the scanning of entire newspaper articles, the subsequent processing of the reproduction and the storing of the work, consisting of one or more text extracts of 11 words, enables a lawful use of the work within the meaning of Article 5(1) of Directive 2001/29, in so far as the text extracts of 11 words are printed and used in the business’s activity of drawing up summaries of newspaper articles, although the holder of the relevant rights has not given authorisation.

– Analysis of and reply to the tenth question

112. For an analysis of this question, the general point may first be made that the use of newspaper articles in the form of a reproduction in part, that is, of extracts of 11 words, is lawful in two cases: if the copyright holder explicitly authorises that reproduction in part, or if that reproduction in part can be justified on the basis of one of the exceptions and limitations to the reproduction right laid down by Directive 2001/29 in Article 5(2) and (3), if Denmark has provided for them in national law and if it fulfils the requirements of Article 5(5) of that Directive.

113. In the present case, it is evident from the facts that the copyright holders have not given their authorisation for the production of the extracts from newspaper articles and the production of those extracts cannot be lawful on that basis. I will therefore examine below whether in the present case the use of newspaper articles in the form of the reproduction of extracts from those newspaper articles can be lawful under one of the exceptions and limitations of Article 5(2) and (3) of Directive 2001/29. I will examine whether that act of reproduction meets the requirements of Article 5(5) of Directive 2001/29 in the context of the reply to the thirteenth question referred, which concerns the interpretation of Article 5(5) of that Directive.

114. Two points should be made concerning the exceptions and limitations to the reproduction right contained in Article 5(2) and (3). First, the exceptions and limitations contained in Article 5(2) and (3) are optional and the Member States only transpose them into national law if they choose to. This is evident from the introductory sentence to Article 5(2) and (3) of the Directive, which provides that the Member States ‘may’ provide for exceptions and limitations. (50) In the present case, the national court has not provided any information as to the exceptions and limitations which are provided for in national legislation in Denmark, for which reason I will merely analyse in this Opinion how the various exceptions and limitations should be interpreted; the final analysis on the basis of those exceptions and limitations has however to be carried out by the national court. In the present case, the national court will therefore have to examine which of the exceptions and limitations provided for in Article 5(2) and (3) of Directive 2001/29 have been provided for by Denmark in its national legislation and establish whether a reproduction in part of newspaper articles in the form of extracts of 11 words can constitute a lawful use of the newspaper articles.

115. Secondly, the exceptions and limitations provided for in Article 5(2) and (3) of Directive 2001/29 are – as is apparent from recital 32 (51) – listed exhaustively, which means that the Member States cannot introduce into national law exceptions and limitations other than those laid down by the Directive. Denmark cannot therefore make provision in its national law for the reproduction in part of newspaper articles in the form of extracts from those articles to be permissible in so far as it is used in the production of summaries, if that action is not permissible on the basis of one of the exceptions and limitations to the reproduction right laid down by Article 5(2) and (3) of Directive 2001/29.

116. The only exception which could prima facie be relevant in the present case is that provided for in Article 5(3)(c), (52) which authorises reproduction in the press and the use of a work in connection with the reporting of current events. (53) That article provides for two exceptions to the reproduction right. The first exception that it authorises is ‘reproduction by the press, communication to the public or making available of published articles on current economic, political or religious topics … in cases where such use is not expressly reserved, and as long as the source, including the author’s name, is indicated’. The second exception that it authorises is ‘use of works or other subject-matter in connection with the reporting of current events, to the extent justified by the informatory purpose and as long as the source, including the author’s name, is indicated, unless this turns out to be impossible’.

117. The fact remains, in my view, that none of the exceptions provided for in Article 5(3)(c) of Directive 2001/29 – even if Denmark has provided for them in its national legislation – can justify a reproduction in part of newspaper articles in the form of extracts of 11 words.

118. The first exception which is provided for in Article 5(3)(c) cannot justify such reproduction as it is not reproduction in the press as newspapers and magazines traditionally come under. (54) The present case does not concern distribution to the public or making published articles available to the public. (55) Communication to the public in fact includes transmission or retransmission of a work to the public by wire or wireless means, including broadcasting. (56) Making available to the public means on the contrary making available a work to members of the public who are not present at the place where the act of publication originates. (57) Even if Infopaq sent its customers extracts from newspaper articles by email, this would not constitute communication to the public (58) or making available to the public. (59)

119. The reproduction in part of newspaper articles in the form of extracts thereof cannot therefore be justified on the basis of the second exception provided for in Article 5(3)(c) of the Directive, which authorises the reporting of current events. That exception in fact authorises the use of works in connection with the independent activity of providing information on current events; (60) a given work may therefore be used in the context of providing information on a given current event. Moreover, if it was allowed that newspaper articles could be reproduced on the basis of the exception which authorises reporting of current events, that would run counter to the purpose of the first exception provided for in Article 5(3)(c), which specifically concerns reproduction, communication to the public and making available of articles on current economic, political or religious topics or other subject-matter of the same character and which, as regards those articles, constitutes the lex specialis in relation to the second exception in that article.

120. The reproduction in part of newspaper articles cannot therefore constitute lawful use of those newspaper articles on the basis of one of the exceptions and limitations provided for in Article 5(2) and (3) of Directive 2001/29.

121. The answer to the tenth question referred must in my view therefore be that the scanning of entire newspaper articles, subsequent processing of the reproduction and the storing of the reproduction which contains one or more text extracts of 11 words, in circumstances such as those of the present case, do not enable a lawful use of the work within the meaning of Article 5(1) of Directive 2001/29, as the text extracts of 11 words are printed and used in the business’s activity of writing of summaries of newspaper articles, although the rightholder has not authorised that activity.

d) Fourth condition: activities which have no independent economic significance (eleventh and twelfth questions)

122. The fourth condition that a temporary act of reproduction must fulfil pursuant to Article 5(1) of Directive 2001/29 to make it possible to exclude it from the reproduction right is that it must have no independent economic significance. (61)

123. The eleventh and twelfth questions referred concern the interpretation of that condition. By its eleventh question, the national court asks what criterion should be applied to assess whether temporary acts of reproduction have independent economic significance within the meaning of Article 5(1) of Directive 2001/29. By its twelfth question, it asks whether the user’s efficiency gains due to temporary acts of reproduction can be taken into account in assessing whether those acts have independent economic significance within the meaning of Article 5(1) of Directive 2001/29.

124. The condition of independent economic significance is not defined in Directive 2001/29. Nor can the meaning of that condition be clarified from the explanatory memorandum to the proposal for the Directive, from which it is apparent that acts of reproduction which have independent economic significance are not covered by the Directive. (62) It is appropriate, when interpreting that condition, to clarify what is meant by stating that a given act of reproduction has economic significance, what is meant by stating that that economic significance is independent, and the person in respect of which (63) that act of reproduction must have independent economic significance.

125. Economic significance means that the temporary act of reproduction must involve an economic advantage for the person who carries it out; indirectly – or, if the copyright holder receives adequate compensation – that that act of reproduction also confers an economic advantage on the copyright holder. (64) The economic advantage may be, for example, a profit or a reduction in costs, an increase in productivity or similar advantages. (65)

126. The key issue in determining whether that economic significance is independent is in my opinion whether the economic advantages stem from the temporary acts of reproduction. There would, for example, be such independent economic significance if Infopaq sent to its customers, in addition to summaries of newspaper articles, scanned copies of those newspaper articles for which it received payment, or if Infopaq’s customers had access to the scanned copies, for example via an Internet link. There would also be independent economic significance if Infopaq carried out scanning of newspaper articles as such which it sent to its customers by email and for which it received remuneration from its customers. (66) The mere possibility that Infopaq could obtain a concrete economic advantage from those two acts of reproduction is not sufficient to fulfil the condition of independent economic significance; the company must actually carry out that activity.

127. The answer to the eleventh question referred must in my opinion therefore be that in assessing whether temporary acts of reproduction have independent economic significance within the meaning of Article 5(1) of Directive 2001/29, it is necessary to establish whether an economic advantage stems directly from the temporary acts of reproduction.

128. In the present case, the scanning of newspaper articles, the conversion of the image file into a text file and the storing of extracts (67) from newspaper articles mean for Infopaq a reduction in costs, an increase in productivity and saving of time. It is not disputed that those acts of reproduction have economic significance for Infopaq, but in my opinion they do not have independent economic significance. In the present case, for there to be independent economic significance, it is not sufficient that the act of reproduction only contributes, in a general manner, to making Infopaq more efficient in the production of extracts. The scanning, the conversion of the image file into a text file and the storing of extracts from newspaper articles are in fact only part of a larger process for the production of extracts and do not have independent economic significance. (68) In the present case, the independent economic significance of the scanning, the conversion of the image file into a text file and the storing of extracts from newspaper articles must be assessed separately from the economic significance that the final printing of extracts from newspaper articles has for Infopaq. In my opinion it must therefore be found that the scanning of articles, the conversion of the image file into a text file and the storing of extracts do not have independent economic significance.

129. In my opinion the answer to the twelfth question referred is therefore that the user’s efficiency gains from temporary acts of reproduction in circumstances such as those of the present case cannot be taken into account in assessing whether those acts have independent economic significance within the meaning of Article 5(1) of Directive 2001/29.

4. Conclusion concerning the interpretation of Article 5(1) of Directive 2001/29

130. On the basis of the analysis of the conditions of Article 5(1) of Directive 2001/29 and of the replies to the second to twelfth questions referred, I find that it is not possible to justify, on the basis of the exceptions to the reproduction right provided for in Article 5(1) of that Directive, the acts of reproduction which are produced during the process for the production of newspaper articles as used by Infopaq. This means in practice that Infopaq must obtain the copyright holder’s consent to the production of the extracts.

E – Interpretation of Article 5(5) of Directive 2001/29 (thirteenth question referred)

131. By its thirteenth question, the national court asks essentially whether the scanning by a business of entire newspaper articles, subsequent processing of the reproduction and the storing and printing of the reproduction, which consists of one or more text extracts of 11 words, without the rightholder’s consent, can be regarded as special cases which are not contrary to a normal exploitation of the newspaper articles and do not unreasonably prejudice the legitimate interests of the rightholder within the meaning of Article 5(5) of Directive 2001/29.

132. Given that I have already established during the analysis of the conditions provided for in Article 5(1) of Directive 2001/29 that the acts of reproduction in the present case do not fulfil the conditions of that article of the Directive, in principle it is not necessary to investigate whether those acts of reproduction fulfil the conditions provided for in Article 5(5). Article 5(5) of Directive 2001/29 in fact sets out additional conditions which acts of reproduction must fulfil, if they fulfil the conditions provided for in Article 5(1). In case the Court finds that the acts of reproduction carried out by Infopaq fulfil the conditions provided for in Article 5(1) of Directive 2001/29, I will briefly examine below whether those acts of reproduction fulfil the conditions provided for in Article 5(5) of the Directive.

133. In the present case, in my opinion it is necessary, when analysing Article 5(5) of Directive 2001/29, to distinguish once more between final acts of reproduction – the printing of extracts from newspaper articles – and the acts of reproduction which those final acts of reproduction make possible – the scanning of newspaper articles, the conversion of the image file into a text file and the storing of the extract from the newspaper article. If the Court in fact finds during its consideration of Article 5(1) of Directive 2001/29 that the final act of reproduction which the temporary acts of reproduction make possible can constitute a lawful use of the work under one of the exceptions and limitations to the reproduction right provided for in Article 5(2) and (3) of the Directive, it would be necessary as regards fulfilment of the condition of lawful use to examine whether that final act of reproduction fulfilled the conditions provided for in Article 5(5) of the Directive. Only then would the condition of lawful use provided for in Article 5(1) of the Directive actually be fulfilled. It is only when that condition is fulfilled – along with all of the other conditions provided for in Article 5(1) of Directive 2001/29 – that one can examine whether the conditions of Article 5(5) of the Directive are also fulfilled by the acts of reproduction which enable that final use. I will therefore first examine below whether the final act of reproduction (the printing of extracts from newspaper articles) fulfils the conditions of Article 5(5) of Directive 2001/29 before further looking at whether those conditions are fulfilled by the acts of reproduction which that act makes possible (scanning of newspaper articles, conversion of the image file into a text file and storing (69) of the extract from the newspaper article).

1. Does the printing of extracts from newspaper articles fulfil the conditions provided for in Article 5(5) of Directive 2001/29?

134. It is apparent from Article 5(5) of Directive 2001/29 that the exceptions and limitations provided for in that article apply, first, only in clearly specified special cases which, secondly, are not contrary to a normal exploitation of the work and which, thirdly, do not unreasonably prejudice the legitimate interests of the rightholders. (70) Those conditions are cumulative. The conditions provided for in Article 5(5) of Directive 2001/29, which are regularly referred to by legal commentators as the ‘three-step test’, (71) were included in the Directive following the model of international treaties, in particular Article 9(2) of the Berne Convention, (72) Article 10 of the World Intellectual Property Organization Copyright Treaty (73) and Article 13 of the TRIPS Agreement. (74) As is apparent from recital 44 in the preamble to Directive 2001/29, the exceptions and limitations provided for by the Directive must be applied in a manner consistent with international obligations. (75) Article 5(5) of Directive 2001/29 must therefore be interpreted taking account of those international treaties.

135. The first condition provided for in Article 5(5) of Directive 2001/29 is that the exceptions and limitations apply only in particular given cases. That condition means that the exceptions and limitations must be clearly defined and must be based on specified particular objectives. (76) Concerning the exception provided for in Article 5(3)(c), the particular objective on which that exception is based is informing the public about current events; it is however also the case that that this exception does not exclude the at least indirectly commercial objective of providing information on current events. (77)

136. If the Court finds that the reproduction of extracts from newspaper articles constitutes a lawful use pursuant to Article 5(3)(c) of Directive 2001/29, that would implicitly be on the assumption that the reproduction of extracts from newspaper articles constitutes informing the public. It can certainly be stated that that reproduction in part of newspaper articles in the form of extracts does not correspond entirely to that objective and that its primary objective is commercial, the provision of information being a secondary objective. However, when, for example, a journal publishes an article from another journal, when one hears on the radio a part of a newspaper article or records a certain part of an exhibition during a television programme on that exhibition, these media use the works not only to inform the public, but also on the contrary for commercial advantage. One can therefore, in my opinion, also state concerning the reproduction of extracts from newspaper articles that, when they are used to draw up summaries of those articles, they are used to inform the public. In my opinion it can therefore be found that this is a special case within the meaning of the first condition of Article 5(5) of Directive 2001/29. The first condition of Article 5(5) of Directive 2001/29 is therefore fulfilled as regards the printing of extracts from newspaper articles.

137. The second condition provided for in Article 5(5) of Directive 2001/29 requires that the particular cases in which the exceptions and limitations apply are not contrary to a normal exploitation of the work. The normal exploitation of newspaper articles means that the newspapers in which the articles are published are sold and that a profit is made therefrom; the economic advantages which may be made from newspaper articles must go to the copyright holders. (78) If the effect on the newspaper market is noticeable and the sale of newspapers diminishes, this goes against normal exploitation. (79)

138. The reproduction of extracts from newspaper articles allows Infopaq to identify rapidly which articles are important and of which a summary must be drawn up. Infopaq can thus draw up summaries of all newspaper articles, for which reason its customers no longer need to buy newspapers. (80) The reproduction of extracts from newspaper articles therefore in my opinion affects the normal exploitation of those newspapers and the second condition of Article 5(5) of Directive 2001/29 is consequently not fulfilled.

139. The third condition provided for in Article 5(5) of Directive 2001/29 is that the particular cases in which the exceptions and limitations apply do not unreasonably prejudice the legitimate interests of the rightholders. In the context of the third condition, the mere effect on the legitimate interests of the rightholders – who are ultimately affected by each exception and limitation – is not sufficient; that effect cannot on the contrary be unjustified. (81) On this occasion the quantitative and qualitative nature of the effect must be taken into account. (82)

140. In the present case, an extract from a newspaper article is produced for all of the articles containing the relevant search words. If the search word appears frequently in those articles, that means quantitatively that extracts from newspaper articles may be produced for numerous articles. If several different search words appear in the same article, that also means that several extracts may be produced for an article. I have already found when analysing the second condition of Article 5(5) of Directive 2001/29 that the reproduction of those extracts has an indirect effect when summaries are produced on the sale of the newspaper articles, for which reason the copyright holders also have a legitimate interest in the profits made by Infopaq. Given that the extracts are produced for a large number of articles, that constitutes in my opinion an unreasonable prejudice to the legitimate interests of the rightholders. In my view it must therefore be found, concerning the printing of extracts from newspaper articles, that the third condition provided for in Article 5(5) of Directive 2001/29 is not fulfilled either.

141. The consequence of the fact that the printing of extracts from newspaper articles does not fulfil the third and fourth conditions provided for in Article 5(5) of Directive 2001/29 is that it cannot constitute a lawful use of the newspaper articles within the meaning of Article 5(1) of that directive.

2. Do temporary acts of reproduction fulfil the conditions of Article 5(5)?

142. As I found in point 141 of this Opinion that the printing of extracts from newspaper articles cannot constitute a lawful use of newspaper articles, it should be found that the scanning, the conversion of the image file into a text file and the storing (83) of extracts from newspaper articles do not enable a lawful use of the work and that thus they do not fulfil the conditions provided for in Article 5(1) of Directive 2001/29. In so far as those acts of reproduction cannot be justified on the basis of Article 5(1) of Directive 2001/29, they cannot be justified independently on the basis of the conditions provided for in Article 5(5) of that Directive. The conclusion must therefore be that the temporary acts of reproduction do not fulfil the conditions of Article 5(5) of that directive.

3. Conclusion concerning t