Reference for a preliminary ruling from the Højesteret (Denmark) lodged on 4 January 2008 - Infopaq International A/S v Danske Dagblades Forening

(Case C-5/08)

Language of the case: Danish

Referring court

Højesteret (Supreme Court)

Parties to the main proceedings

Applicant: Infopaq International A/S

Defendant: Danske Dagblades Forening (Danish Daily Newspaper Publishers' Association)

Questions referred

(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 ¹)?

(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))?

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¹ - Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ L 167, p10)