Danes press again for Infopaq answers

Above: The Kats of Justice of the European Union know the answers ... but they're not telling.

European copyright enthusiasts will already know all about Case C-5/08 Infopaq International A/S v Danske Dagblades Forening (briefly noted here on the 1709 Blog) in which the Danish Højesteret referred a list of questions for a preliminary ruling from the Court of Justice of the European Union on 4 January 2008. What they wanted to know was:

"(i) 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 which are protected (see Article 2 of the Infosoc Directive [Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society, here])?
(ii) 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 the Infosoc Directive)?
(iii) 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?
(iv) 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?
(v) 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?
(vi) 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 the Infosoc Directive)?
(vii) Can temporary acts of reproduction be an 'integral and essential part of a technical process' if they consist of manual scanning of entire newspaper articles whereby the latter are transformed from a printed medium into a digital medium?
(viii) 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?
(ix) Does 'lawful use' (see Article 5(1) of the Infosoc Directive) include any form of use which does not require the copyright holder's consent?
(x) Does 'lawful use' (see Article 5(1) of the Infosoc Directive) 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?
(xi) What criteria should be used to assess whether temporary acts of reproduction have 'independent economic significance' (see Article 5(1) of the Infosoc Directive) if the other conditions laid down in the provision are satisfied?
(xii) 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 the Infosoc Directive)?
(xiii) 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))?"

The Court came out with its ruling on 16 July 2009, tidying the questions up by providing just two answers:

"1. An act occurring during a data capture process, which consists of storing an extract of a protected work comprising 11 words and printing out that extract, is such as to come within the concept of reproduction in part within the meaning of Article 2 of [the Infosoc Directive], if the elements thus reproduced are the expression of the intellectual creation of their author; it is for the national court to make this determination.

2. The act of printing out an extract of 11 words, during a data capture process such as that at issue in the main proceedings, does not fulfil the condition of being transient in nature as required by Article 5(1) of Directive 2001/29 and, therefore, that process cannot be carried out without the consent of the relevant rightholders".

This is not the end of the story. The IPKat has since spotted that a fresh reference has been made to the Court of Justice, by the very same Højesteret, in Case C-302/10 -- between the very same litigants (Infopaq International A/S v Danske Dagblades Forening). In this reference, dated 18 June 2010, the Danish court asks:

"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' (see Article 5(1) of the Infosoc Directive 1)? [= Question 6 of C-5/08]
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? [= Question 7 of C-5/08]
3. Does 'lawful use' (see Article 5(1) of the Infosoc Directive) include any form of use which does not require the copyright holder's consent? [= Question 9 of C-5/08]
4. Does 'lawful use' (see Article 5(1) of the Infosoc Directive) 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? [very similar to Question 10 of C-5/08]
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' (see Article 5(1) of the Infosoc Directive) if the other requirements in the provision are satisfied? [= Question 11 of Case C-5/08]
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 (see Article 5(1) of the Infosoc Directive)? [= Question 12 of Case C-5/08]
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' (see Article 5(5)), if the requirements in Article 5(1) of the directive are satisfied? [Similar to Question 13 of Case C-5/08]
Is it relevant to the answer to the question whether the 11 words are stored after the data capture process is terminated?"

The IPKat is very interested in this. The Court in Case C-5/08 answered the first question, then merged their responses to questions 2 to 12 on the basis that they were a single question:

"whether acts of reproduction occurring during a data capture process, such as that at issue in the main proceedings, satisfy the conditions laid down in Article 5(1) of Directive 2001/29 and, therefore, whether that process may be carried out without the consent of the relevant rightholders, since it is used to draw up summaries of newspaper articles and consists of scanning those articles in their entirety to produce a digital file, storing an extract of 11 words and then printing out that extract".

Having in effect provided a single answer the Court added that, in the light of this combined answer, it was unnecessary to answer question 13. Presumably this is not acceptable to the referring court, which is why it is trying again.

Merpel feels sad for the litigants. Obviously for the sake of economy there is a good reason why the Court of Justice should not expend its resources on (i) answering questions that are inherently unnecessary or in (ii) giving unnecessary answers to even necessary questions. However in cases such as this, where questions are being ping-ponged between a senior appellate national court and the Court of Justice, the real losers are (i) the litigants themselves, who must trade in the murky half-light of legal uncertainty for an already-lengthy period which becomes protracted through no fault of their own, and (ii) their consumers. Without knowing more about the background to the second reference it is tempting to say that a great deal of time and annoyance could have been avoided if the Court of Justice had just answered the referred questions in the first place, leaving the referring court to get on with finishing off the case before it.

Do any readers have background information on this? If so, the Kats would all love to know.

Twenty Questions here

Twenty Seven Questions here

Europe's first institution for resolving referred questions here

Why Don't You Answer? here