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Thursday, 12 February 2009

Infopaq: eleven little words

The IPKat has just received, via a concerned reader who wishes to remain anonymous, a translation into English of the operative part of the Advocate General's Opinion in Case C-5/08, Infopaq (see earlier IPKat post here). Its supplier urges that it be treated as no more than a first draft (although the translator believes he has adhered to the terminology of the questions referred to the Court and of Directive 2001/29).  


Right: a portrait of our translator

This draft translation of the Advocate General's Opinion runs as follows:
"1. The storing and subsequent printing out of an extract from an article in a daily newspaper which contains the word sought and also the five preceding and the five subsequent words must be regarded as a reproduction within the meaning of Article 2 of Directive 2001/29 [says the IPKat, presumably this would apply to any number of words -- the question relates to what constitutes reproduction, not what constitutes infringement. But why then was the question even asked? Was seriously argued that storage and printing out does not constitute reproduction?].
2. The essential circumstance which is important in order for a particular act of reproduction to be regarded as ‘transient’ within the meaning of Article 5(1) of Directive 2001/29 is that the reproduction lasts only for a very short time, although for the purposes of assessment all the circumstances of the particular case must be taken into account.
3. If a temporary act of reproduction is brought about by the processing of a text file on the basis of an image file and if both files are deleted, in circumstances such as those of the present case, that act of reproduction must be regarded as ‘transient’ within the meaning of Article 5(1) of Directive 2001/29.
4. The national court must, on the basis of the criteria set out in the answer to the second question, determine whether the act of reproduction may be regarded as being ‘transient’ within the meaning of Article 5(1) of Directive 2001/29, if part of the reproduction which contains one or more extracts of 11 words is stored.
5. An act of reproduction cannot be regarded as ‘transient’ within the meaning of Article 5(1) of Directive 2001 if in circumstances such as those of the present case part of the reproduction which contains one or more extracts of 11 words is printed out. [aha -- while the act of printing out might be 'transient' in that it lasts for only a very short time, its consequences are not 'transient' because the copy persists in existing until something happens to it]
6. The stage of the technological process at which temporary acts of reproduction take place has no bearing on whether they must be regarded as an integral and essential part of a technological process within the meaning of Article 5(1) of Directive 2001/29. [good -- we take 'integral' and 'essential' as having functional connotations that are not bound by the physical parameters of any specific technological process]
7. If the 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 the technological process within the meaning of Article 5(1) of Directive 2001/29. [the Kat hopes that this conclusion was not the result of agonised thought ...]
8. In circumstances such as those of the present case, the printing out of an extract is not a temporary act of reproduction and for that reason cannot be justified on the basis of Article 5 of Directive 2001/29 and it is therefore irrelevant whether that act of reproduction may be an integral and essential part of the technological process.
9. 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 for which the authorisation of the holder of the copyright is not necessary or which is expressly authorised by the holder of the copyright; in the case of the use of a work in the form of a reproduction, the authorisation of the holder of the copyright is not necessary if the reproduction is authorised on the basis of one of the exceptions set out in 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 is consistent with Article 5(5) of Directive 2001/29.
10. The scanning of entire newspaper articles, the subsequent reproduction and storing of the work of reproduction which contains one or more text extracts of 11 words, in circumstances such as those of the present case, do not permit the lawful use of the work within the meaning of Article 5(1) of Directive 2001/29, since those text extracts of 11 words are printed out and used in the context of the activity of that undertaking consisting in the drafting of summaries of newspaper articles, even though the right holder has not authorised that activity.[now we're getting to the juicy bit -- if this act isn't lawful without permission, if you do it you are either a licensee or an infringer.  Start making your business plans accordingly]
11. When 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 flows directly from those temporary acts of reproduction. [presumably 'significance' can include detriment as well as 'advantage'?]
12. An increase in productivity for the user occasioned by the temporary acts of reproduction in circumstances such as those of the present case cannot be taken into account when assessing whether those acts have ‘independent economic significance’ within the meaning of Article 5(1) of Directive 2001/29.
13. The scanning of entire newspaper articles by the undertaking, the subsequent processing of the reproduction and the storing and printing out of part of the reproduction which contains one or more text extracts of 11 words in circumstances such as those of the present case cannot be regarded as particular special cases which are not contrary to the normal use of newspaper articles and do not unreasonably prejudice the legitimate interests of the rightholder within the meaning of Article 5(1) of Directive 2001/29". [if nothing else, such use was probably not contemplated by any of the drafters of Directive 2001/29]
Thanks so much, anon!

Eleven golden words here
Eleven words that sound offensive but aren't, here

4 comments:

Guido Westkamp said...

I wonder (apart from whether a that typeof information is protectable) when the time will come that the ECJ stops reading IP directives literally and starts using teleological arguments. The effect of all this (I just read the German version of the opinion)is to create an extremely broad notion of the reproduction right. In fact,you don't need any other rights- whenever there is a non-authorised 'transient'reproduction, there is infringement. If there is an applicable limitation,that limitation must - because of the three step test that must then additionally be applied, apparently - be interpreted restrictively, because otherwise it conflicts with the right to control transient copies. The opinion notes that the reproduction right is at the heart of copyright protection, but it clearly was a metaphor and required that the original was substituted. It is time that the provision is withdrawn.

Anonymous said...

Temporary acts of reproduction? That takes me back...

Anonymous said...

Shame there was no effective digital rights lobby in the European Parliament in 2001, to have campaigned for U.S. style standards of fair use.

If all the copyright owners are now getting extended terms, perhaps (as Google has suggested) it's time to look again at the questions of the scope of fair use/fair dealing, as a quid-pro-quo.

Wasn't recognition of "transformative use" one of the Gowers report key recommendations?

mcvooty said...

A rigid, backward-looking point of view, ignorant of the impact of the internet and digitization on our culture and society.

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