ECJ clarifies the ‘temporary reproduction’ exemption in EU copyright law

The Court of Justice of the European Union (ECJ) has provided some extra guidance regarding a peculiar part of EU copyright law: the act of temporary reproduction. This exemption to copyright protection, designed to make electronic transmission of content possible, or to technically enable legitimate use of a work, has been the cause of long legal battles. The question is when a certain ‘temporary’ copy, constitutes an infringement of copyrights. The ECJ reiterated its stance that exemptions to copyright must be interpreted strictly.

The reference for a preliminary ruling was brought to the highest European Court by the Supreme Court of Denmark and concerns the interpretation of Article 5(1) and 5(5) of Directive 2001/29/EC (on IP rights in the information society). The Supreme Court asked for  clarification on the issue of temporary reproduction in the context of a case between Infopaq – a media monitoring and research business – and DDF, an association of Danish newspaper publishers. In the national case, Infopaq said it was not required to obtain consent of the newspapers for the automated scanning of newspaper articles and their conversion into a digital file, because it are acts of temporary reproduction without any economic value. However, DDF said Infosoc was making reproductions (art. 2 of Directive 2001/19) that were not covered by the exemption of Art. 5(1) of the same directive.

The ECJ clarified a number of issues in this preliminary ruling:

• This exemption to copyright protection must be interpreted strictly because it is a derogation from the general principle that the right holder shall authorize any reproduction of a protected work.
• A temporary reproduction is only allowed if it aims to make legitimate use and access to protected works possible. The Directive prescribes that the copy must “not have independent economic significance”.
• Since most protected works have economic value, an act of temporary reproduction is only permitted under Article 5(1) if it does not “enable the generation of an additional profit” (for the user) going beyond that derived from lawful use of the protected work and that the acts of temporary reproduction must not “lead to a modification of that work”.
• The link between the scope of the limitation in Article 5(1) and the so-called three step test in Article 5(5) of the same directive. (paragraph 55 of the ruling).

According to Johann Axhamn of Stockholm University, the requirement of generating “additional profit” seems to infer that the exemption can only apply to uses for which the right holder has already been compensated. Moreover, the exemption can not be used to make temporary fusions or combinations of pre-existing works for the purpose of creating new (derivative) works – such as might be the case for some user-generated content, because this use ‘modifies’ the original works.

Sources: Kluwer Copyright Blog; Directive 2001/29/EC regarding copyright and related rights in the information society; European Court of Justice Case C-302/10 (Infopaq II) 17 January 2012. See also the previous Infopaq case, C-5/08 (Infopaq I), 16 July 2009