The Danish case concerns Infopaq International, a media monitoring and analysis company. It has pretty obvious implications for the whole of the EU, even if the answers to some of the referred questions seem clear in advance of an ECJ ruling. The Højesteret may have decided to get its money’s worth.
It has decided to refer the following questions to the Court of Justice of the European Communities pursuant to Article 234 EC.
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 proceeding and five subsequent words, he regarded as acts of reproduction which are protected (see Article 2 of the Infosoc Directive)
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 the Infosoc Directive)?
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 the Infosoc Directive)?
7. 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?
8. Can temporary acts of reproduction constitute an ‘integral and essential part of a technical process’ where they consist of printing out part of the reproduction, compromising one or more text extracts of 11 words?
9. Does ‘lawful use’ (see Article 5(1) of the Infosoc Directive) include any form which does not require the copyright holder’s consent.
10. 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?
11. What criteria should be used to access 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?
12. Can the user’s efficiency gains from temporary acts of reproduction be taken into account in assessing whether acts have ‘independent economic significance (see Article 5(1) of the Infosoc Directive)?
13. Can the scanning by a commercial business of entire newspaper articles, subsequent processing of the reproduction, and the storing and possible printing our 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)?
