The exclusive right to reproduce, or copy, a work lies at the heart of copyright law. The EC harmonised this right in Article 2 of Directive 2001/29/EC. Despite its key role, “reproduction” is not defined in Directive 2001/29, beyond being expressed to apply to “direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part.” However, the European Court of Justice (“ECJ”) has now provided important guidance on its scope in Case C-5/08 Infopaq International v. Danske Dagblades Forenung (not yet reported, judgment of 16 July 2009).

Infopaq operates a media monitoring and analysis business creating summaries of selected articles from Danish newspapers and sending them to customers by e-mail. Selections are made by means of a “data capture process” which involves scanning physical copies of newspaper articles to create digital files which are then processed to find pre-determined search words. When a match is located, data including the publication, page number and the five words which precede and follow the search word (a total of eleven words) is generated and a cover sheet containing this information is printed. Danske Dagblades Forenung (“DDF”) is a professional association of Danish newspapers. When it became aware that Infopaq lacked authorisation from the relevant copyright owners, DDF complained to Infopaq; Infopaq sought a declaration that it was not required to obtain consent for its activities. The Højesteret (the Danish High Court) referred thirteen questions to the ECJ for a preliminary ruling.

The first question asked whether the concept of “reproduction in part” would encompass storing and printing out on paper a text extract consisting of eleven words. The ECJ noted that copyright within the meaning of Article 2(a) of the Directive applies only to subject matter which is original in the sense that it is its author's own intellectual creation (at [37]). The Court held that parts of a work will enjoy protection, provided that they contain elements which are the expression of the intellectual creation of the author of the work. Here, newspaper articles were clearly their author's own intellectual creation. Words in isolation could not be so considered, as it is “only through choice, sequence and combination of those words that the author may express his creativity in an original manner and achieve a result which is an intellectual creation” (at [45]). Thus, sentences or parts of sentences could come within the scope of protection in Article 2(a) of Directive 2001/29 and the Court held it was for the national court to determine whether the eleven words in question reproduced the expression of the intellectual creation of their author (at [46]–[51]).

The ECJ's finding that storing an extract would come within the concept of reproduction if the elements reproduced could be characterised as original, with originality defined as “the expression of the intellectual creation of their author”, appears to interpret Directive 2001/29 as having harmonised the legal concept of originality alongside harmonisation of the reproduction right. This is a significant development, particularly for UK copyright law. Does harmonisation of the reproduction right in the EC necessarily require harmonisation of originality? The ECJ asserted that the intention must have been to harmonise originality, based upon Articles 1(3) of Directive 91/250, 3(1) of Directive 96/9 and 6 of Directive 2006/116, which provide that computer programs, databases and photographs are only protected by copyright if they are the author's own intellectual creation (at [35]). However, one could equally contend that had the EC wished to harmonise originality across the board it would have done so explicitly. In favour of the latter proposition, Article 2 harmonises reproduction in respect of neighbouring rights as well as authorial rights, and the former are not generally required to demonstrate originality in order to obtain protection.

The foundation of the ECJ's reasoning is its assertion that the “general scheme” of the Berne Convention, particularly Article 2(5) and (8), lays down a standard of originality that amounts to “intellectual creation” (at [34]). However, this proposition is far from uncontroversial. Even if the Berne Convention does implicitly contain an originality standard, nothing prevents Berne Union countries from protecting non-original works, as Berne only sets minimum standards. In fact, the EC has accepted that non-original works can be protected, as it specifically provides that Member States may protect non-original photographs in Article 6 of Directive 2006/116/EC on the term of protection of copyright and certain related rights. Moreover, if the EC has harmonised originality in a manner that removes copyright protection from certain works or categories of work, this might conflict with the principle of respecting acquired rights and legitimate expectations, as set out in Recital 25 of Directive 2006/116 and would also have implications under Article 1, Protocol 1 of the European Convention of Human Rights.

The decision means that UK copyright lawyers will now have to consider whether the standard of “intellectual creation” is a different, or higher, standard to be applied to all copyright works. The UK test (whether the author has exercised “skill, judgment and labour” in producing a work: see Ladbroke v. William Hill [1964] 1 W.L.R. 273, 278, 282) is generally assumed to be a lower standard than that of “intellectual creation”, but it is likely that a UK court would not treat eleven words forming part of a sentence as sufficiently original to warrant protection. Moreover, where does the ECJ's approach to “reproduction in part” leave the British statutory requirement that infringement must occur in relation to a “substantial” part (Copyright, Designs and Patents Act 1988, s.16(3)(a))? Again, the suggestion that copying eleven words could amount to infringement appears to contemplate a higher level of protection than the substantial part test applied by UK courts.

Questions 2 to 12 of the referring court, which only become relevant if the national court finds that the acts of Infopaq come within the concept of reproduction, concerned the mandatory exception relating to temporary and transient acts of reproduction set out at Article 5(1) of Directive 2001/29. The meaning and scope of this exception are far from clear and Advocate General Trstenjak considered each of the requirements in detail (Opinion, 12 February 2009 [63]–[130]). However, the ECJ noted only that the exemption must be interpreted strictly and in the light of the need for certainty. It found that an act could only be considered “transient” if “its duration is limited to what is necessary for the proper completion of the technological process in question” and that the process must be automated so that it deletes the act automatically and without human intervention (at [64]). The final stage of the data capture process involved Infopaq printing out the files containing the eleven words onto paper. This act could not be considered transient as it would disappear only when the paper was destroyed. As the act did not fulfil one of the conditions laid down in Article 5(1), it could not be exempted and the Court held it was not necessary to consider the other conditions.

The reproduction right is expressed in expansive terms in Directive 2001/29, and by this decision the ECJ not only interpreted the right still more broadly, but also interpreted the one mandatory exemption strictly. This is unsurprising given that the Court began from the premise that the Directive's “main objective is to introduce a high level of protection, in particular for authors to enable them to receive an appropriate reward for the use of their works … in order to be able to pursue their creative and artistic work” (at [40]). Such an approach lies in stark contrast to that taken three months earlier by the High Court of Australia, where Gummow, Hayne and Heydon JJ. observed that “the purpose of a copyright law respecting original works is to balance the public interest in promoting the encouragement of ‘literary’, ‘dramatic’, ‘musical’ and ‘artistic works’, as defined, by providing a just reward for the creator, with the public interest in maintaining a robust public domain in with further works are produced”: IceTV v. Nine Network Australia [2009] H.C.A. 14, [71]. This decision, which also turned on the issue of partial reproduction, was decided (in the defendant's favour) with numerous references to the historical development of the law in the UK. It is ironic, then, that only three months later that law was arguably consigned to the history books in this country.