In a referral decision concerning a referral by a Danish court, the European Court of Justice decided on the admissibility of the creation of electronic press reviews in light of Art. 2 and 5 of Directive 2001/29/EC Concerning Copyright in the Information Society on July 16, 2009 (case C-5/08). This decision is specifically interesting also because it contains the first statement by the ECJ on the legality of electronic press reviews in light of the Directive after the decision on electronic press reviews by the German Federal Court of Justice of July 11, 2002 (I ZR 255/00). The German Federal Court of Justice decided at the time that in light of the fair use provision for press reviews in Sec. 49 of the German Copyright Act, electronic press reviews were only allowed for internal use within one company or administrative body and exclusively in the form of graphic files without search or indexing options.
In the Danish litigation which led to the referral to the ECJ, a third party company had produced press reviews from select articles published in Danish newspapers and magazines and compiled these in a data selection process in several steps. The reviews were sent to customers by email.
At the end of the compilation process, excerpts from selected articles were restated which contained a particular search term and showed the section of the article starting five words before the search term and ending five words after the search term. The object of the litigation was, among others, whether storing and printing such textual excerpts constituted a reproduction according to Art. 2 of the Directive and, if this is the case, whether this constitutes a permitted temporary reproduction under Art. 5 para. 1 of the Directive. The ECJ held, first of all, that the excerpts from a newspaper article protected by copyright may be sufficiently creative itself even if the excerpt consists of only eleven words. Whether the required level of creativity is reached, however, will need to be decided by the domestic court in each case. If this is the case, according to the ECJ, the printout of such an excerpt will constitute a relevant reproduction under copyright law. This reproduction would only be permitted under Art. 5 para. 1 of the Directive if it was temporary and, apart from other requirements, transient or incidental. At least with respect to the printouts of the excerpts, according to the ECJ, this was not the case as these are not transient. If the respective excerpt is sufficiently creative in and of itself the reproduction of such excerpts from the respective articles will therefore not be permitted without the right holder’s consent according to Art. 5 para. 1 of the Directive.