CORONAS HONORÍFICAS

For the definition of the right of reproduction, the InfoSoc Directive adopted a notion taken from the specific Directives on information goods, i.e. computer programmes and databases.44 This right is defined very broadly, as “…the exclusive right to authorise or

prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part…” of copyrighted works and of performances, phonograms, films and broadcasts protected by so-called neighbouring rights. As pointed out in the relevant literature, because of the inclusion of temporary copying in the copyright scope, the technical concept of reproduction gives rise to an unprecedented condition of simultaneity among the different modes of commercial exploitation of a work (cf. Ginsburg, 1995; Ricolfi, 2002; Hugenholtz, 1996; Hugenholtz, 2000a). This condition of simultaneity is easy to understand if one considers that, in the digital environment, reproductions constitute a technical necessity for digital content to be browsed, cached, used and transmitted over networks. The preamble of the InfoSoc Directive emphasises the necessity to define the concept of ‘reproduction’ in conformity with the acquis communautaire (cf. Recital 21). The very broad definition of the reproduction right (i.e. any form of permanent and temporary copying) incorporated under Article 2 follows the technology-related concept adopted by Directive 91/250 with regard to computer programmes, ten years earlier. To counterbalance such a broad notion, the InfoSoc Directive provides a mandatory exception that specifies that temporary acts of copying are to be exempted from the scope of reproduction right when they are: “[T]ransient or incidental [and] an integral and essential part of a technological process and whose sole purpose is to enable: (a) a transmission in a network between third parties by an intermediary, or (b) a lawful use of a work or other subject matter to be made, and which have no independent economic significance…”

Article 5(1) enacted two distinct provisions. On the one hand, Article 5(1)(a) exempts certain temporary acts, for example, caching,45 _{and routing,}46 _{which enable intermediaries such as}

ISPs temporarily to store and reproduce digital packets of copyright works through their

41 _{See C-393/09 BSA v. Ministry of Culture of the Czech Republic (2011), par. 45-50.} 42 _{See C-145 Eva-Maria Painer v. Standard Verlags GmbH (2012), par. 88-92.} 43 _{See C-403/08 and 429/08 Premier League v. QC Leisure (2012), par. 98.}

44 _{See Article 4(a) of the Software Directive and Articles 5(a) and 7(2)(a) of the 1996 Database Directive.} 45 _{‘Caching’ (from the French ‘cacher’, i.e. ‘to hide’) is the automatic creation of temporary copies of} data in order to make the data immediately available for subsequent uses.

46 _{The term ‘routing’, instead, describes a modality of transmission by which each whole of digital} data is fragmented into many packets, each of which is sent electronically to the required destination through the shortest way.

cables and network infrastructure.47 _{On the other hand, Article 5(1)(b) allows end-users to}

engage in temporary acts (e.g. browsing and caching) that have “no independent economic significance”. The case law of the CJEU is of help to better understand the factual requirements that should be met for the exemption from the reproduction right to apply.48

The Court found that a reproduction of copyright materials should be regarded as transient or incidental under certain conditions, each of which should be satisfied for the copyright exception to apply (Infopaq, par. 55). Firstly, the duration of the act must be limited to what is necessary for the proper completion of the technological process at issue (Infopaq, par. 64). Secondly, for temporary acts to be exempted, a reproduction should be an integral and essential part for the correct and efficient functioning of the technological process (Infopaq II, par. 30). Thirdly, the reproduction should aim at enabling either a transmission in a network between third parties by an intermediary or a lawful use, such as the ephemeral acts of reproductions that enable a satellite decoder and a television screen to function correctly.49

Last but not least, the reproduction must not have an independent economic significance, in the sense that it is not be able to generate an economic advantage additional to the one generated by the intended use and it should not modify contents.50

With particular regard to the transient reproductions made by information carriers and exempted under Article 5(1)(a), this exemption serves the purpose of excluding carriers from indirect liability for copyright infringements carried out by their customers (see also above, in the introductory Section to this report). The technical functioning of the Internet – like that of a gigantic ‘copy machine’ – requires intermediaries to engage in temporary reproductions of small digital packets for digital content to be communicated over networks. The above- mentioned provision of the InfoSoc Directive makes it clear that acts of transient reproduction do not fall within the legal notion of ‘copies’ that are subject to the control of copyright holders. The complementary provisions of Article 5(1)(a) of the InfoSoc Directive and Articles 12 to 15 of the 2000 Electronic Commerce Directive restrict, under certain clear conditions, the liability of ISPs acting as mere conduits, caching and hosting service providers for the communication of infringing material.51 _{It is worth recalling that, at the} time of the negotiations for the 1996 WIPO Copyright Treaties, the issue of transient reproductions was far from being taken for granted. This question was highly debated in Geneva, where the US delegation proposed the adoption of a notion of copyright reproduction that would have intentionally invoked the liability of information carriers for

47 _{See: ‘Did we really need a European lawmaker to tell us that caching and browsing are allowed} without authorisation? A common sense right would have done the job as well, if not much better…’ (Hugenholtz, 2000b).

48 _{See C-5/08 Infopaq International A/S v. Danske Dagblades Forening (2009); C-302/10 Infopaq}

International A/S v. Danske Dagblades Forening (2012), hereinafter Infopaq II; C-403/08 Football Association

Premier League Ltd and Others v. QC Leisure and Others (2012), hereinafter Premier League.

49 _{See Premier League, par. 165-172. By ‘lawful use’ one should mean a use either authorised by the} right-holder or not restricted by law, as made it clear in the InfoSoc Directive, Recital 33. See also

Infopaq II, par. 43-44.

50 _{See Premier League, par. 176, and Infopaq II, par. 54.}

51 _{See Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain} legal aspects of information society services, in particular electronic commerce, in the Internal Market, OJ L 178, 17.7.2000, hereinafter ‘e-Commerce Directive, Articles 12 to 15. On the connection between the InfoSoc Directive and the e-Commerce Directive see Hart (2002) and IVIR (2007).

their acts of communication through networks. The intention was that of requiring such intermediaries to police unauthorised flows of copyrighted works through their infrastructure.52

The landmark decision of the CJEU in Infopaq shed light on the scope of the exclusive right of reproduction by pointing out the existence of an inextricable link between the notion of ‘reproduction’ and the requirement of originality of the copyright work that is copied without the authorisation of the copyright owner. Interestingly enough, Infopaq did not concern the making of digital copies. Rather, the supposedly infringing activity consisted of storing an extract of a copyright work comprising 11 words and printing out that extract. The CJEU found that such an activity could come within the scope of Article 2 of the InfoSoc Directive “if the elements thus reproduced are the expression of the intellectual creation of their author” (Infopaq, par. 51). In a subsequent case concerning the copying of transient fragments of protected works within a satellite decoder and on a television screen, the CJEU found that the reproduction rights could extend to those fragments insofar as they contain elements which are the expression of the author’s own intellectual creation and a court determines the subsistence of such elements while examining the units composed of such fragments simultaneously (Premier League, par. 159). As emphasised in the literature, if these judgments were deemed to mean that the reproduction of 11 words or of a few fragments of a protected work always infringes copyright, this would have maximising tendencies (Griffiths, 2014). Instead, this approach merely suggests that very short extracts of protected works might constitute a reproduction legally reserved to the copyright holder, within the meaning of Article 2.