The CJEU clarified certain aspects of the exemption for certain acts of temporary reproduction in its decisions of 17 January in case C-302/10. In more particular, the reference for a preliminary ruling concerns the interpretation of Article 5(1) and (5) 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.
This reference has been made in the context of proceedings between Infopaq International A/S (‘Infopaq’) and Danske Dagblades Forening (‘DDF’) concerning the dismissal of Infopaq’s application for a declaration that it was not required to obtain the consent of the rightholders for acts of reproduction of newspaper articles using an automated process consisting in the scanning of those articles and their conversion into a digital file followed by electronic processing of that file.
The Danish Court referred the following questions to the Court for a preliminary ruling:
‘1. 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”, within the meaning of Article 5(1) of Directive 2001/29?
2. 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?
3. Does the concept of “lawful use”, within the meaning of Article 5(1) of Directive 2001/29, include any form of use which does not require the copyright holder’s consent?
4. Does the concept of “lawful use”, within the meaning of Article 5(1) of Directive 2001/29, include the scanning by a commercial business of entire newspaper articles and subsequent processing of the reproduction, for use in the business’s summary writing, even where the rightholder has not given consent to those acts, if the other requirements in the provision are satisfied?
Is it relevant to the answer to the question whether the 11 words are stored after the data capture process is terminated?
5. What criteria should be used to assess whether temporary acts of reproduction have “independent economic significance”, within the meaning of Article 5(1) of Directive 2001/29 if the other requirements in the provision are satisfied?
6. Can the user’s efficiency gains from temporary acts of reproduction be taken into account in assessing whether the acts have “independent economic significance”, within the meaning of Article 5(1) of Directive 2001/29?
7. Can the scanning by a commercial business of entire newspaper articles and the subsequent processing of the reproduction, 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”, pursuant to Article 5(5) of Directive 2001/29, if the requirements in Article 5(1) of the directive are satisfied?
Is it relevant to the answer to the question whether the 11 words are stored after the data capture process is terminated?’
The Court (Third Chamber) ruled that:
1) Article 5(1) 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 must be interpreted as meaning that the acts of temporary reproduction carried out during a ‘data capture’ process, such as those in issue in the main proceedings,
– fulfil the condition that those acts must constitute an integral and essential part of a technological process, notwithstanding the fact that they initiate and terminate that process and involve human intervention;
– fulfil the condition that those acts of reproduction must pursue a sole purpose, namely to enable the lawful use of a protected work or a protected subject-matter;
– fulfil the condition that those acts must not have an independent economic significance provided, first, that the implementation of those acts does not enable the generation of an additional profit going beyond that derived from the lawful use of the protected work and, secondly, that the acts of temporary reproduction do not lead to a modification of that work.
2) Article 5(5) of Directive 2001/29 must be interpreted as meaning that, if they fulfil all the conditions laid down in Article 5(1) of that directive, the acts of temporary reproduction carried out during a ‘data capture’ process, such as those in issue in the main proceedings, must be regarded as fulfilling the condition that the acts of reproduction may not conflict with a normal exploitation of the work or unreasonably prejudice the legitimate interests of the rightholder.
See: Johan Axhamn, (Faculty of Law, Stockholm University), Infopaq II – The CJEU elucidates some aspects of the exemption for certain acts of temporary reproduction, available at: http://kluwercopyrightblog.com/2012/02/07/infopaq-ii-%E2%80%93-the-cjeu-elucidates-some-aspects-of-the-exemption-for-certain-forms-of-temporary-reproduction/