Thursday, August 12, 2010

Infopaq II. is Coming to the Court of Justice

This is really exciting news. Infopaq v. Danish Daily Newspaper Publishers’ Association litigation is probably not over. Indeed, Danish court has addressed Court of Justice with another bundle of highly interesting questions. So after very interesting Infopaq I. C-05/08 decision, let's see what Court of Justice have to say about Infopaq II. C-302/10 questions in a few upcoming months.
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)?

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?

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? [exactly Hutkos thesis question!]

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? 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?

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)?

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? [Waaw the three step test right on the table!] Is it relevant to the answer to the question whether the 11 words are stored after the data capture process is terminated?
For Hutko this is the copyright referrence of the year!

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