Is 11 the Magic Number?

Infopaq, founded in Denmark in 1998, is a media monitoring and analysis company. One of their services is the monitoring of keywords that appear in newspaper text. To achieve this, Infopaq scans newspaper pages and the uses software to turn the image of the page into text. If pre-determined keywords that clients want monitored appear in the text, then that keyword and five words on either side of it are kept – 11 words in total – and the rest of the text is discarded.

According to this article, the European Court of Justice (ECJ) – the European Union’s highest court – has just ruled that the copying and reproduction of just 11 words of a news article could be considered copyright infringement. Of course, copyright infringement can only occur if newspaper articles are deserving of copyright protection. This issue, the ECJ said, is something that would be up to a national court to decide. Supposing that newspaper articles do qualify as literary works and thus are protected by copyright law, what Infopaq is doing would be considered to be unlawful.

On one hand, Infopaq argued that while acts of copying and reproduction were used in their monitoring service, what they were doing was ‘transient’ copying and that such copying is legal because of exceptions in the European Union’s Copyright Directive. Transient copying can be explained as copying of material that is later deleted from computer memory. However, the ECJ held that while some parts of Infopaq’s processing could be called transient, as soon as it had printed out the 11 words on to paper, the copying became too permanent to be considered as transient.

Is this ruling taking copyright too far? Have we approached the edge of the slippery slope? If the copying of 11 words may be considered to be copyright infringement, who is to say that the same would not apply to 5 words, or even 3 words? How would this ruling also apply to other types of companies that perform similar functions? Too many questions, and too few answers. Let us take a look at the popular search engine Google, for instance. When Google displays search results, it not only displays the title of the website itself, but also snippets of text from that website. In many cases, these snippets consist of more than 11 words. In many cases, these snippets are from original literary works that are deserving of copyright protection, whether they are poems or song lyrics, etc. Would this be considered copyright infringement by Google? If the answer is no, then why are Infopaq’s actions wrong? Infopaq is doing what many other news clipping services have been doing for decades. In fact, it can be argued that the 11 word snippet itself is commercially useless unless the article is read in its entirety.

On the other hand, perhaps the fact that someone is paying for such a service means that there is commercial value to the snippets. While Infopaq is making a profit from their search services, the underlying information that they are searching comes from newspaper articles. Thus, if the newspaper articles did not exist, then Infopaq would not have articles to analyze, and they would not be in business. In addition, the ECJ states that some snippets are so pithy and original that they are not commercially useless on their own:

The possibility may not be ruled out that certain isolated sentences, or even certain parts of sentences in the text in question, may be suitable for conveying to the reader the originality of a publication such as a newspaper article, by communicating to that reader an element which is, in itself, the expression of the intellectual creation of the author of that article. Such sentences or parts of sentences are, therefore, liable to come within the scope of the protection provided for in Article 2(a) of that directive.

In the end, this ECJ ruling is precarious. It seems that we are heading towards the era where we must ask ourselves “what CAN I do?” instead of “what CAN’T I do?” Is this where we want to be?