ECJ rules on the scope of copyright infringement exception

The European Court of Justice (ECJ) has issued a ruling [1] on an exception to copyright infringement for certain "transient" or "incidental" copying. The ruling is relevant to internet access providers, as well as online content aggregation businesses and clarifies the requirements that must be met if the exception is to apply.     

Subject to certain statutory exceptions, it is an infringement of copyright to copy a copyright work without the copyright owner's permission. Electronic, transient and incidental copies can all infringe copyright. However, there is an exception under Article 5(1) of the Copyright Directive [2] (the "Article 5(1) Exception") for "transient" or "incidental" copying that is an essential and integral part of a technological process. The exception was crafted specifically with browsing and caching activities in mind, but has a wider application too. (In this particular case, the exception was relied on by a news monitoring service). Various conditions must be satisfied in order for the exception to apply:

• the sole purpose of the copying must be either to enable transmission by an intermediary of the copyright work in a network between third parties or to enable lawful use of the copyright work
• the transient copying must have no "independent economic significance".

The case before the ECJ concerned Infopaq, an organisation providing media and news monitoring services. Infopaq's services include producing summaries for its customers of selected articles from Danish daily newspapers and other periodicals. Infopaq agrees with its customers subject criteria for articles and then selects the articles by means of a data capture process. The summaries are sent to customers by email.

Danske Dagblades Forening ("DDF"), a professional association of Danish newspapers, complained that Infopaq was infringing its members' copyright by scanning Danish daily newspapers for commercial purposes without first obtaining the copyright owner's consent.

Infopaq's process for creating a news summary involves a number of discrete stages: 

• Infopaq employees first register the relevant publications manually in an electronic database. 
• Infopaq then scans the publications, creating a TIFF ('Tagged Image File Format') file for each page of the publication. 
• The TIFF file is then transferred to an  OCR ('Optical Character Recognition') server which translates the TIFF file into data that can be processed digitally. During that process, the image of each letter is translated into a character code which tells the computer what type of letter it is. These data are saved as a text file which can be understood by any text processing program. The OCR process is completed by deleting the TIFF file.
• The text file is then processed to find a pre-defined search word.  Each time a match for a search word is found, data is generated giving the publication, section and page number on which the match was found, together with a value expressed as a percentage between 0 and 100 indicating how far into the text it is to be found. The system also captures an eleven word extract showing the search term in context.  The process ends with Infopaq producing a printed sheet containing this summary information. 

DDF argued that the process resulted in four separate copies: (i) the TIFF file; (ii) the text file; (iii) the electronically stored eleven-word extract; and (iv) the printed sheet containing the eleven-word extract.   

As the judicial authority of the European Union, the ECJ's principal task is to interpret Community law on questions referred to it by national courts of individual Member States. Its decisions are binding on national courts throughout the European Union.

Following a reference from the Danish Courts in this case, the ECJ ruled, first, that reproduction of an eleven-word extract from a newspaper article was capable of constituting copying if those words are "the expression of the intellectual creation of their author". On that basis, there would be an infringement of copyright unless the copyright owner had given permission for the copying or unless the Article 5(1) Exception applied. 

The ECJ said that, in order to benefit from the Article 5(1) Exception, the copying must not exceed what is necessary for the proper completion of the technological process. Copying will be "transient" only if its duration is limited to what is necessary for the proper completion of the technological process.  What is more, there must be an automated process for deleting the transient copy, once its function as part of the technological process has ceased.  Deletion must not depend on some human intervention.

It followed that the three electronic copies were potentially capable of falling within the exception, provided they were automatically deleted as soon as the relevant process was completed.  However, the printed summary sheet containing the eleven-word extract could not be considered a "transient" copy, because there was no certainty that it would be destroyed once the process for which it was created was completed.  Its destruction would depend entirely on the will of the user, who might choose to keep the copy for a longer period.

Comment

This ECJ ruling shows that, in order for the Article 5(1) Exception to apply, it is essential that there is an automated process for deleting transient copies. Any business that currently relies on the Article 5(1) Exception should check its existing processes to ensure that transient copies are deleted automatically and promptly as soon as the copies are no longer needed for the relevant technological process. Printing clearly falls outside the exception and requires the consent of the copyright owner, which may be expensive.

Emily Parris is a Professional Support Lawyer for our Technology Law Group.

[1] Infopaq International A/S v Danske Dagblades Forening (Case C-5/08)

[2] In the UK, the Copyright Directive was implemented through the Copyright and Related Rights Regulations 2003. Under the Regulations, the Article 5(1) Exception does not apply to software or databases.)