Recently, the European Court of Justice decided that, in addition to copying entire scanned copies of articles, the reproduction of the first 11 words from newspaper articles by a news aggregation service could also infringe copyright.
Infopaq operated a media monitoring business which created summaries of selected articles from Danish daily newspapers and other periodicals. The articles were selected on the basis of certain subject criteria agreed with customers and the selection was made by means of a “data capture process”. The resulting summaries were sent to customers by email.
In 2005, Danske Dagblades Forening (DDF), an association of Danish daily newspaper publishers, became aware that Infopaq was scanning newspaper articles for commercial purposes without authorisation. DDF claimed that the following four activities carried out by Infopaq infringed its members’ copyright:
Creation of TIFF files by scanning the articles;
Creation of text files using the TIFF files;
Storing and publishing 11-word text extracts from the articles; and
Printing out the extracts
The ECJ found that Infopaq’s activities infringed copyright. The act of copying an extract of 11 words during the data capture process was not transient in nature and therefore not exempt under Article 5(1) of the Directive. The ECJ therefore held that the process could not be carried out without the consent of the relevant right-holders.
Google Books in a broader European policy context
Google’s controversial project to digitise the world’s books and the proposed Google Books Settlement (the Settlement) with authors and publishers of copyright works in the US, which gained preliminary approval from a federal judge at the end of November 2009, has potential implications for European copyright law and policy and online distribution of copyright works in Europe.
Google recently stated in a European Commission hearing that it will exclude all European books that are still “commercially available”. Therefore, such books will no longer be available to American consumers through a search on Google Books, unless the copyright owner has expressly agreed that the book could be included (under previous proposals, non-US copyright owners would automatically fall within the scope of the Settlement unless they actively opted out within a specified time frame).
Further amendments were made to the Settlement in November 2009, due to continued international concerns, following which works will only be included in the digital project if they have been registered in the US or come from the UK, Australia or Canada. This means that 95% of all foreign works will no longer be included in Google’s digital book archive. As an additional protection, authors and publishers from the UK, Australia or Canada will have their own representation on the board of the planned rights registry to oversee the Settlement.
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