“Infopaq and the common standard of originality in Europe” by suchenfz

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									“Infopaq and the common standard
      of originality in Europe”
     Professor Lionel Bently, University of Cambridge
           Dr Justine Pila, University of Oxford
      Dr Nick Saunders, Barrister, Hogarth Chambers
    Lord Hoffmann, Queen Mary, University of London
Infomation Society Directive                                     …3. A computer
                                                                 program shall be
Art 2: …the exclusive right to authorise or prohibit direct or   protected if it is original
indirect, temporary or permanent reproduction by any             in the sense that it is the
means and in any form, in whole or in part:(a) for authors,      author’s own intellectual
of their works.’                                                 creation. No other
                                                                 criteria shall be applied
Art 5: (1) Temporary acts of reproduction … which are            to determine its
transient or incidental [and] an integral and essential part     eligibility for protection.’
of a technological process and whose sole purpose is to
enable: (a) a transmission in a network between third
parties by an intermediary, or (b) a lawful use of a work or
other subject-matter to be made, and which have no
independent economic significance, shall be exempted from
the reproduction right provided for in Article 2.
…
5. The exceptions and limitations provided for in
paragraphs 1, 2, 3 and 4 shall only be applied in certain
special cases which do not conflict with a normal
exploitation of the work or other subject-matter and do not
unreasonably prejudice the legitimate interests of the
rightholder.
The data capture process...



                                    Chop off the spine,         TIFF file transferred
  Manual Registration
                                     scan and create a           to an OCR server
     in database
                                          TIFF file             and text file created




                                                                 Text file processed
                                       Cover sheet is             to identify search
                                        printed out                term and output
                                                                      generated


        e.g. a search for ‘TDC’ generates the following:
      4 November 2005 – DagbladetArbejderen, page 3:
      TDC: 73% ‘a forthcoming sale of the telecommunications group TDC which is
      expected to be bought’
Infosoc Directive                                                Q1: are the storing
                                                                 and print out of the 11
Art 2: …the exclusive right to authorise or prohibit direct or   words acts of
indirect, temporary or permanent reproduction by any             reproduction which
means and in any form, in whole or in part:(a) for authors, of   are protected?
their works.’

Art 5: (1) Temporary acts of reproduction … which are            Qus 2-12
transientor incidental [and] an integral and essential part of
a technological process and whose sole purpose is to enable:
(a) a transmission in a network between third parties by an
intermediary, or (b) a lawful use of a work or other subject-
matter to be made, and which have no independent
economic significance, shall be exempted from the
reproduction right provided for in Article 2.
…
5. The exceptions and limitations provided for in                Qu 13
paragraphs 1, 2, 3 and 4 shall only be applied in certain
special cases which do not conflict with a normal
exploitation of the work or other subject-matter and do not
unreasonably prejudice the legitimate interests of the
rightholder.
[34] It is... apparent from the                 In those circumstances,
general scheme of the Berne       + the other   copyright within the meaning
Convention, in particular         definitions   of Article 2(a) of Directive
Article 2(5) and (8), that the                  2001/29 is liable to apply only
protection of certain subject-                  in relation to a subject-matter
matters as artistic or literary                 which is original in the sense
works presupposes that they                     that it is its author’s own
are intellectual creations                      intellectual creation.
The protection [under art 2]
must be construed broadly


                               ...it should be observed that
As regards newspaper
                               they consist of words which,
articles, their author’s
                               considered in isolation, are not
own intellectual
                               as such an intellectual creation
creation... is evidenced
                               of the author who employs
clearly from the form,
                               them. It is only through the
the manner in which the                                           11 consecutive words
                               choice, sequence and
subject is presented and                                          [...constitutes
                               combination of those words
the linguistic expression.                                        reproduction] ...if
                               that the author may express
                                                                  that extract contains
                               his creativity in an original
                                                                  an element of the
                               manner and achieve a result
                                                                  work which, as such,
                               which is an intellectual
                                                                  expresses the
                               creation.
                                                                  author’s own
                                                                  intellectual creation;
                                                                  it is for the national
                                                                  court to make this
                                                                  determination
The act is temporary
                         only if its duration is limited to what is necessary
                         for the proper completion of the technological
                         process in question, it being understood that that
It is transient or       process must be automated so that it deletes that
incidental               act automatically, without human intervention,
                         once its function of enabling the completion of
                         such a process has come to an end.
It is an integral and
essential part of a
                         The print out (final stage) is not transient
technological process


Sole purpose of that
                            [is] intended to enable the
process is to enable a
                            completion of a technological
transmission... of a
                            process of which it forms an integral
lawful use...
                            and essential part.... those acts of
                            reproduction must not exceed what
No independent              is necessary for the proper
economic significance       completion of that technological
                            process
    Infopaq – national procedure
• DDF filed a motion in October 2008 seeking re-
  referral to the ECJ on the unanswered questions.
• No ruling as of yet – not expected before
  Feb/March
• The Infopaq v DDF case which is currently on
  appeal in Sweden was stayed on Tuesday pending
  the decision of the Danish Supreme Court on re-
  referral. At first instance Infopaq succeeded in
  Sweden on Art 5(1).
    Meanwhile, back in England...
R v Gilham [2009] EWCA Crim 2293

• The game as a whole is not the sole subject of
  copyright thus the ‘little and often’ issues fall away

• “...even if the contents of the RAM of a game console
  at any one time is not a substantial copy, the image
  displayed on the screen is such... [if the pause is
  pressed] There is then displayed a still image, a copy of
  an artistic work, generated by the digital data in RAM...
  it is sufficient that a transient copy is made.”
“Infopaq and the common standard
      of originality in Europe”
     Professor Lionel Bently, University of Cambridge
           Dr Justine Pila, University of Oxford
      Dr Nick Saunders, Barrister, Hogarth Chambers
    Lord Hoffmann, Queen Mary, University of London

								
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