• Professional News
  • 08 April 2013

Copyright: Infopaq loses case in the Danish Supreme Court

An 11-word text extract may contain copyrighted sentences or parts of a sentence. This was established on 15 March 2013 when the Danish Supreme Court made a final and conclusive judgment in the dispute between Infopaq and Danske Dagblade on the application of sections 2 and 11a of the Danish Copyright Act (ophavsretsloven).

The Danish Supreme Court affirmed the High Court of Eastern Denmark’s judgment of 2007, bringing an end to the case between Infopaq and Danske Dagblade (Danish Local Newspapers). Infopaq’s partial reproduction in the form of text extracts from newspaper articles constitutes an infringement under section 2 of the Copyright Act, and Infopaq’s procedure is not deemed to be temporary reproduction. Consequently, lawful use of text extracts is subject to the consent of Danske Dagblade.

Case from 2005
In 2005, Infopaq International A/S (Infopaq), a media monitoring and analysis company, instituted legal proceedings against the Danish Newspaper Publishers’ Association (Danske Dagblade), which helps its members enforce their copyrights. Infopaq wanted the court to confirm that the company could lawfully, without the consent of Danske Dagblade, scan copyrighted newspaper articles into a database with a view to electronic search and printing of short text extracts from the articles.

In 2007, the High Court of Eastern Denmark held that Infopaq’s procedure constituted reproduction covered by the exclusive right of the rights holders under section 2 of the Copyright Act. This procedure was not deemed to constitute temporary reproduction under section 11a of the Copyright Act.

As grounds for its decision, the High Court stated that the scanning and storing of newspaper articles was not transient or incidental and was not carried out for the sole purpose of enabling lawful use. The High Court also found that Infopaq’s procedure was likely to be of financial importance to the company. The High Court considered whether all the conditions of section 11a of the Copyright Act were met, which was not the case.

The Supreme Court affirms judgment
Infopaq appealed the decision to the Supreme Court. During the proceedings, two preliminary references, comprising a total of 20 questions, were made to the European Court of Justice about the understanding of sections 2 and 11a.

The Supreme Court concluded that the work process resulting in a text extract of 11 words (partial reproduction) constituted an infringement under section 2 of the Copyright Act on the grounds that the 11-word text extract would “from time to time contain copyrighted sentences or parts of a sentence”. 

Finally, the Supreme Court stated that Infopaq’s procedure did not fall within the exception in section 11a of the Copyright Act, as it did not fulfil the requirement of being transient. The Supreme Court accordingly refrained from taking a position on whether the other conditions of section 11a were met.

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