Danes press again for Infopaq answers

Above: The Kats of Justice of the European Union know the answers ... but they're not telling.

European copyright enthusiasts will already know all about Case C-5/08 Infopaq International A/S v Danske Dagblades Forening (briefly noted here on the 1709 Blog) in which the Danish Højesteret referred a list of questions for a preliminary ruling from the Court of Justice of the European Union on 4 January 2008. What they wanted to know was:

"(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 [Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society, here])?
(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))?"

The Court came out with its ruling on 16 July 2009, tidying the questions up by providing just two answers:

"1. An act occurring during a data capture process, which consists of storing an extract of a protected work comprising 11 words and printing out that extract, is such as to come within the concept of reproduction in part within the meaning of Article 2 of [the Infosoc Directive], if the elements thus reproduced are the expression of the intellectual creation of their author; it is for the national court to make this determination.

2. The act of printing out an extract of 11 words, during a data capture process such as that at issue in the main proceedings, does not fulfil the condition of being transient in nature as required by Article 5(1) of Directive 2001/29 and, therefore, that process cannot be carried out without the consent of the relevant rightholders".

This is not the end of the story. The IPKat has since spotted that a fresh reference has been made to the Court of Justice, by the very same Højesteret, in Case C-302/10 -- between the very same litigants (Infopaq International A/S v Danske Dagblades Forening). In this reference, dated 18 June 2010, the Danish court asks:

"1. 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 1)? [= Question 6 of C-5/08]
2. Can temporary acts of reproduction be an 'integral and essential part of a technological process' if they consist of manual scanning of entire newspaper articles whereby the latter are transformed from a printed medium into a digital medium? [= Question 7 of C-5/08]
3. 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? [= Question 9 of C-5/08]
4. Does 'lawful use' (see Article 5(1) of the Infosoc Directive) include the scanning by a commercial business of entire newspaper articles and subsequent processing of the reproduction, for use in the business's summary writing, even where the rightholder has not given consent to those acts, if the other requirements in the provision are satisfied? [very similar to Question 10 of C-5/08]
Is it relevant to the answer to the question whether the 11 words are stored after the data capture process is terminated?
5. 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 requirements in the provision are satisfied? [= Question 11 of Case C-5/08]
6. 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)? [= Question 12 of Case C-5/08]
7. Can the scanning by a commercial business of entire newspaper articles and the subsequent processing of the reproduction 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)), if the requirements in Article 5(1) of the directive are satisfied? [Similar to Question 13 of Case C-5/08]
Is it relevant to the answer to the question whether the 11 words are stored after the data capture process is terminated?"

The IPKat is very interested in this. The Court in Case C-5/08 answered the first question, then merged their responses to questions 2 to 12 on the basis that they were a single question:

"whether acts of reproduction occurring during a data capture process, such as that at issue in the main proceedings, satisfy the conditions laid down in Article 5(1) of Directive 2001/29 and, therefore, whether that process may be carried out without the consent of the relevant rightholders, since it is used to draw up summaries of newspaper articles and consists of scanning those articles in their entirety to produce a digital file, storing an extract of 11 words and then printing out that extract".

Having in effect provided a single answer the Court added that, in the light of this combined answer, it was unnecessary to answer question 13. Presumably this is not acceptable to the referring court, which is why it is trying again.

Merpel feels sad for the litigants. Obviously for the sake of economy there is a good reason why the Court of Justice should not expend its resources on (i) answering questions that are inherently unnecessary or in (ii) giving unnecessary answers to even necessary questions. However in cases such as this, where questions are being ping-ponged between a senior appellate national court and the Court of Justice, the real losers are (i) the litigants themselves, who must trade in the murky half-light of legal uncertainty for an already-lengthy period which becomes protracted through no fault of their own, and (ii) their consumers. Without knowing more about the background to the second reference it is tempting to say that a great deal of time and annoyance could have been avoided if the Court of Justice had just answered the referred questions in the first place, leaving the referring court to get on with finishing off the case before it.

Do any readers have background information on this? If so, the Kats would all love to know.

Twenty Questions here

Twenty Seven Questions here

Europe's first institution for resolving referred questions here

Why Don't You Answer? here

Eleven words that axed a thousand trees

Rather late in the day, the ruling of the Court of Justice of the European Communities in Case C‑5/08, Infopaq International A/S v Danske Dagblades Forening, a reference for a preliminary ruling from the Højesteret (Denmark).

In short Infopaq, a media monitoring and analysis business, drew up summaries of selected articles from Danish daily newspapers and other periodicals. Those articles were selected on the basis of subject criteria agreed with their customers. Once the articles had been secured by data capture, they were sent to customers by email. DDF, a professional association of Danish daily newspaper publishers which assisted its members with copyright issues, discovered that Infopaq was scanning newspaper articles for commercial purposes without authorisation from the relevant rightholders. Taking the view that such consent was necessary for processing articles using the process in question, DDF complained to Infopaq about this procedure.

The data capture process was as follows:

1. The relevant publications were registered manually by Infopaq employees in an electronic registration database.

2. Once the spines were cut off the publications so that all the pages consisted of loose sheets, the publications were scanned. The section to be scanned was selected from the registration database before the publication was put into the scanner. Scanning allowed a TIFF (‘Tagged Image File Format’) file to be created for each page of the publication. After the scanning, the TIFF file was transferred to an OCR (‘Optical Character Recognition’) server.

3. The OCR server translated the TIFF file into data that could be processed digitally. During that process, the image of each letter was translated into a character code that told the computer what type of letter it was. That data was saved as a text file which could be understood by any text processing program. The OCR process was completed by deleting the TIFF file.

4. The text file was processed to find pre-defined search words. Each time a match for a search word was found, data was generated giving the publication, section and page number on which the match was found, together with a value expressed as a percentage between 0 and 100 indicating how far into the text it is to be found, in order to make it easier to read the article. Also in order to make it easier to find the search word when reading the article, the five words which come before and after the search word were captured (this being referred to in the judgment as an ‘extract of 11 words’). At the end of the process the text file was deleted.

5. At the end of the data capture process, a cover sheet was printed out in respect of all the pages where the relevant search word was found. The following is an example of the text of a cover sheet’.

Infopaq denied that this procedure required consent from the rightholders and brought an action claiming that DDF should be ordered to acknowledge that Infopaq was entitled in Denmark to apply this procedure without the consent of DDF or of its members. After the court dismissed that action, Infopaq appealed to the Højesteret, which referred 13 questions to the Court for a preliminary ruling.

It was conceded that consent from the rightholders was not required for (i) press monitoring activity and the writing of summaries consisting in manual reading of each publication, (ii) selection of the relevant articles on the basis of predetermined search words, or (iii) production of a manually prepared cover sheet for the summary writers, giving an identified search word in an article and its position in the newspaper. Nor was it disputed that genuinely independent summary writing per se is lawful and does not require consent from the rightholders, or that the data capture process described above involved two acts of reproduction: the creation of a TIFF file when the printed articles are scanned and the conversion of the TIFF file into a text file. It was also common ground that the procedure entailed the reproduction of parts of the scanned printed articles since the extract of 11 words was stored and those 11 words were printed out on paper. The Højesteret however sought guidance on the following issues:

‘(1) 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 [Directive 2001/29, the Directive on copyright and the information society]?

(2) 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 Directive 2001/29)?

(3) 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?

(4) 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?

(5) 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?

(6) 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 Directive 2001/29)?

(7) Can temporary acts of reproduction be an “integral and essential part of a technological process” if they consist of manual scanning of entire newspaper articles whereby the latter are transformed from a printed medium into a digital medium?

(8) 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?

(9) Does “lawful use” (see Article 5(1) of Directive 2001/29) include any form of use which does not require the rightholder’s consent?

(10) Does “lawful use” (see Article 5(1) of Directive 2001/29) 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?

(11) What criteria should be used to assess whether temporary acts of reproduction have “independent economic significance” (see Article 5(1) of Directive 2001/29) if the other conditions laid down in the provision are satisfied?

(12) 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 Directive 2001/29)?

(13) 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) of Directive 2001/29)?’

The Advocate General answered each question separately, but the Court decided to short-circuit the issues by ruling as follows:

"1. An act occurring during a data capture process, which consists of storing an extract of a protected work comprising 11 words and printing out that extract, is such as to come within the concept of reproduction in part within the meaning of Article 2 of Directive 2001/29 ..., if the elements thus reproduced are the expression of the intellectual creation of their author; it is for the national court to make this determination.

2. The act of printing out an extract of 11 words, during a data capture process such as that at issue in the main proceedings, does not fulfil the condition of being transient in nature as required by Article 5(1) of Directive 2001/29 and, therefore, that process cannot be carried out without the consent of the relevant rightholders".

Says the IPKat, this short-circuiting approach is one that the ECJ rather likes, since it redirects the focal point of its rulings from the factual details -- which are in its view the province of the referring court -- to the general principles that national courts are to provide. Apart from the fact that the ECJ is wary of being asked effectively to rule on the facts, the more detailed are its answers to detailed questions, the easier it is to distinguish subsequent cases on the facts. He also muses on how just 11 words can generate so many thousands of words in terms of opinions, judgments etc.

Merpel says, it's an odd situation really: the printing out of the 11-word extracts looks like a non-transient part of a process which is part-transient, part-fixed; economically it is effectively transient but physically it isn't. Tufty adds: the Court made it plain that Article 5 provides derogations from the principle of protection for authors' rights and that, being exceptions to the basic rule that consent is needed, those derogations must be construed narrowly.

Eleven words that sound dirty but aren't, here

Day in a life, summarised in eleven words

Elven words here

Transient cat here

Infopaq: eleven little words

The IPKat has just received, via a concerned reader who wishes to remain anonymous, a translation into English of the operative part of the Advocate General's Opinion in Case C-5/08, Infopaq (see earlier IPKat post here). Its supplier urges that it be treated as no more than a first draft (although the translator believes he has adhered to the terminology of the questions referred to the Court and of Directive 2001/29).  

Right: a portrait of our translator

This draft translation of the Advocate General's Opinion runs as follows:

"1. The storing and subsequent printing out of an extract from an article in a daily newspaper which contains the word sought and also the five preceding and the five subsequent words must be regarded as a reproduction within the meaning of Article 2 of Directive 2001/29 [says the IPKat, presumably this would apply to any number of words -- the question relates to what constitutes reproduction, not what constitutes infringement. But why then was the question even asked? Was seriously argued that storage and printing out does not constitute reproduction?].

2. The essential circumstance which is important in order for a particular act of reproduction to be regarded as ‘transient’ within the meaning of Article 5(1) of Directive 2001/29 is that the reproduction lasts only for a very short time, although for the purposes of assessment all the circumstances of the particular case must be taken into account.

3. If a temporary act of reproduction is brought about by the processing of a text file on the basis of an image file and if both files are deleted, in circumstances such as those of the present case, that act of reproduction must be regarded as ‘transient’ within the meaning of Article 5(1) of Directive 2001/29.

4. The national court must, on the basis of the criteria set out in the answer to the second question, determine whether the act of reproduction may be regarded as being ‘transient’ within the meaning of Article 5(1) of Directive 2001/29, if part of the reproduction which contains one or more extracts of 11 words is stored.

5. An act of reproduction cannot be regarded as ‘transient’ within the meaning of Article 5(1) of Directive 2001 if in circumstances such as those of the present case part of the reproduction which contains one or more extracts of 11 words is printed out. [aha -- while the act of printing out might be 'transient' in that it lasts for only a very short time, its consequences are not 'transient' because the copy persists in existing until something happens to it]

6. The stage of the technological process at which temporary acts of reproduction take place has no bearing on whether they must be regarded as an integral and essential part of a technological process within the meaning of Article 5(1) of Directive 2001/29. [good -- we take 'integral' and 'essential' as having functional connotations that are not bound by the physical parameters of any specific technological process]

7. If the acts of reproduction consist of manual scanning of entire newspaper articles whereby the latter are transformed from a printed medium into a digital medium, in circumstances such as those of the present case, those acts of reproduction constitute an integral and essential part of the technological process within the meaning of Article 5(1) of Directive 2001/29. [the Kat hopes that this conclusion was not the result of agonised thought ...]

8. In circumstances such as those of the present case, the printing out of an extract is not a temporary act of reproduction and for that reason cannot be justified on the basis of Article 5 of Directive 2001/29 and it is therefore irrelevant whether that act of reproduction may be an integral and essential part of the technological process.

9. The lawful use of a work within the meaning of Article 5(1) of Directive 2001/29 covers any form of use of a work for which the authorisation of the holder of the copyright is not necessary or which is expressly authorised by the holder of the copyright; in the case of the use of a work in the form of a reproduction, the authorisation of the holder of the copyright is not necessary if the reproduction is authorised on the basis of one of the exceptions set out in Article 5(2) and (3) of Directive 2001/29, if the Member State concerned has transposed that exception or limitation into national law and if the reproduction is consistent with Article 5(5) of Directive 2001/29.

10. The scanning of entire newspaper articles, the subsequent reproduction and storing of the work of reproduction which contains one or more text extracts of 11 words, in circumstances such as those of the present case, do not permit the lawful use of the work within the meaning of Article 5(1) of Directive 2001/29, since those text extracts of 11 words are printed out and used in the context of the activity of that undertaking consisting in the drafting of summaries of newspaper articles, even though the right holder has not authorised that activity.[now we're getting to the juicy bit -- if this act isn't lawful without permission, if you do it you are either a licensee or an infringer.  Start making your business plans accordingly]

11. When assessing whether temporary acts of reproduction have ‘independent economic significance’ within the meaning of Article 5(1) of Directive 2001/29, it is necessary to establish whether an economic advantage flows directly from those temporary acts of reproduction. [presumably 'significance' can include detriment as well as 'advantage'?]

12. An increase in productivity for the user occasioned by the temporary acts of reproduction in circumstances such as those of the present case cannot be taken into account when assessing whether those acts have ‘independent economic significance’ within the meaning of Article 5(1) of Directive 2001/29.

13. The scanning of entire newspaper articles by the undertaking, the subsequent processing of the reproduction and the storing and printing out of part of the reproduction which contains one or more text extracts of 11 words in circumstances such as those of the present case cannot be regarded as particular special cases which are not contrary to the normal use of newspaper articles and do not unreasonably prejudice the legitimate interests of the rightholder within the meaning of Article 5(1) of Directive 2001/29". [if nothing else, such use was probably not contemplated by any of the drafters of Directive 2001/29]

Thanks so much, anon!

Eleven golden words here
Eleven words that sound offensive but aren't, here

Infopaq AG Opinion: call for assistance!

Now here's a reference to the European Court of Justice that has so far taken just 13 months to get to the stage of an Advocate General's Opinion (well done!), but the down-side is that it's available in only a smattering of official European tongues. The case is C-5/08 Infopaq International A/S v Danske Dagblades Forening, a reference from the Danish Højesteret (Supreme Court).

The questions referred are these:

"(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)?

(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))?"

This morning, in her best Slovene, Mme Verica Trstenjak gave her Opinion on these remarkably detailed and precise questions. She has recommended to the Court that it rule as follows (quoted here in French):

"1) La sauvegarde et l’impression ultérieure d’un extrait d’un article d’un quotidien qui contient le terme recherché ainsi que les cinq mots qui le précèdent et les cinq mots qui le suivent doivent être considérés comme une reproduction au sens de l’article 2 de la directive 2001/29.

2) La circonstance essentielle, importante pour qu’un acte de reproduction déterminé soit considéré comme transitoire au sens de l’article 5, paragraphe 1, de la directive 2001/29, est que la reproduction ne dure qu’un temps très bref, même s’il faut lors de l’appréciation tenir compte de l’ensemble des circonstances du cas individuel.

3) Si un acte de reproduction provisoire est réalisé par le traitement d’un fichier texte sur la base d’un fichier image et si ces deux fichiers sont effacés, dans des circonstances telles que celles de la présente affaire, cet acte de reproduction doit être considéré comme transitoire au sens de l’article 5, paragraphe 1, de la directive 2001/29.

4) La juridiction nationale doit, sur la base des critères posés dans la réponse à la deuxième question préjudicielle, juger si l’acte de reproduction peut être considéré comme étant transitoire au sens de l’article 5, paragraphe 1, de la directive 2001/29, si on sauvegarde une partie de la reproduction qui comprend un ou plusieurs extraits de onze mots.

5) Un acte de reproduction ne peut pas être considéré comme étant transitoire au sens de l’article 5, paragraphe 1, de la directive 2001/29, si dans des circonstances telles que celles de la présente affaire, on imprime une partie de la reproduction qui comprend un ou plusieurs extraits de onze mots.

6) L’étape du processus technique au cours de laquelle les actes de reproduction provisoires interviennent n’est pas importante pour la question de savoir s’ils doivent être considérés comme une partie intégrante et essentielle du processus technique au sens de l’article 5, paragraphe 1, de la directive 2001/29.

7) Si les actes de reproduction provisoires comprennent la numérisation manuelle d’articles de journaux entiers par laquelle ces derniers sont convertis d’un média imprimé en un média numérique, dans des circonstances telles que celles de la présente affaire, ces actes de reproduction constituent une partie intégrante et essentielle du processus technique au sens de l’article 5, paragraphe 1, de la directive 2001/29.

8) Dans des circonstances telles que celles de la présente affaire, l’impression d’un extrait n’est pas un acte de reproduction provisoire, raison pour laquelle on ne pourra pas la justifier sur le fondement de l’article 5, paragraphe 1, de la directive 2001/29 et il est par conséquent sans importance de savoir si cet acte de reproduction peut être une partie intégrante et essentielle du processus technique.

9) L’utilisation licite d’une œuvre au sens de l’article 5, paragraphe 1, de la directive 2001/29 recouvre toute forme d’utilisation d’une œuvre pour laquelle l’autorisation du titulaire du droit d’auteur n’est pas nécessaire ou qui est explicitement autorisée par le titulaire du droit d’auteur; dans le cas de l’utilisation d’une œuvre sous la forme d’une reproduction, l’autorisation du titulaire du droit d’auteur n’est pas nécessaire si la reproduction est autorisée sur la base de l’une des exceptions posées par l’article 5, paragraphes 2 et 3, de la directive 2001/29, si l’État membre concerné a transposé cette exception ou limitation en droit national et si la reproduction est conforme à l’article 5, paragraphe 5, de la directive 2001/29.

10) La numérisation d’articles de journaux entiers, le traitement ultérieur de la reproduction et la sauvegarde de l’œuvre de reproduction qui contient un ou plusieurs extraits de texte de onze mots, dans les circonstances telles que celles de la présente affaire, ne permettent pas l’utilisation licite de l’œuvre au sens de l’article 5, paragraphe 1, de la directive 2001/29, puisque les extraits de texte de onze mots sont imprimés et sont utilisés dans le cadre de l’activité de cette entreprise consistant dans la rédaction de synthèses des articles de journaux, bien que le titulaire du droit n’ait pas autorisé cette activité.

11) Il faut en appréciant si les actes de reproduction provisoires ont une signification économique indépendante au sens de l’article 5, paragraphe 1, de la directive 2001/29 établir si un avantage économique découle directement des actes de reproduction provisoires.

12) L’augmentation de la productivité pour l’utilisateur, du fait des actes de reproduction provisoires dans des circonstances telles que celles de la présente affaire, ne saurait être prise en compte lors de l’appréciation si ces actes ont une signification économique indépendante au sens de l’article 5, paragraphe 1, de la directive 2001/29.

13) La numérisation d’articles de journaux entiers réalisée par l’entreprise, le traitement ultérieur de la reproduction ainsi que la sauvegarde et l’impression d’une partie de la reproduction qui contient un ou plusieurs extraits de texte de onze mots dans des circonstances telles que celles de la présente affaire, ne sauraient être considérés comme des cas particuliers déterminés qui ne sont pas contraires à l’exploitation normale des articles de journaux et ne causent pas de préjudice injustifié aux intérêts légitimes du titulaire des droits au sens de l’article 5, paragraphe 5, de la directive 2001/29".

The IPKat would appreciate some guidance from any reader more linguistically talented than him -- please post your comment/translation below.   Merpel says, even if you were to read this Opinion in a foreign language, in a dark room and with the lights turned out, while wearing sun-glasses, it still sheds more light on the subject than the infamous Opinion of AG Mengozzi in Case C-487/07 L'Oréal SA v Bellure (see IPKat posts here and here).