LA ENTRADA A BRASIL: MIGRACIÓN POR EL ARCO FRONTERIZO

The applicability of the substantiality requirement is also relevant in relation to Google Books. As discussed earlier, Google Books search engine produces search results in response to a user’s enquiry. In addition to bibliographic information of the relevant books90 and links to online stores from which the books may be purchased, the search results display snippets, namely, a few lines in the books, containing the search terms entered by the user. It may be disputable as to whether the display of the snippets constitutes reproduction of a substantial part of the books.

A reference may be made to Newspaper Licensing Agency Ltd & Other Companies v Meltwater

Holding BV & Other Companies91 in which one of the questions raised was whether an extract

90 _{A title in itself is not considered a copyright work: see for instance: Francis, Day & Hunter Ltd v Twentieth Century Fox Corp Ltd & Ors} [1939] 4 All ER 192; Dicks v Yates (1881) 18 ChD 76; and Rose v Information Services Ltd [1987] FRS 255. In Noah v Shuba [1991] FSR 14, the English court held that two sentences on their own did not provide ‘sufficient information, instruction or literary enjoyment to qualify as a work.’However a list of titles may be protected by copyright as a compilation if there is sufficient effort in making the list so as to make it ‘original’: section 7(3)(a) of the CA 1987; see also British Broadcasting Co v Wireless League Gazette Publishing Co [1926] Ch 433; Ladbroke

(Football) Ltd v William Hill (Football) Ltd [1964] 1 All ER 465, [1964] 1 WLR 273. In Algemeen Dagblad B.V. & Ors v Eureka Internetdiensten [2002] ECDR 1 for instance, the Dutch court found that the setting of links from the defendant’s website to the claimants’

websites was not a reproduction of the news reports and articles, but the entire incorporation of the list of titles from the claimants’ homepage on the defendant’s website was a reproduction of the titles and of the list of titles. The court then found that the defendant was entitled to the exception in sections 15 and 15a of the Copyright Act 1912 of the Netherlands which dealt with reproduction by a press medium with proper indication of the source and freedom of quotation respectively. The Belgian court in Copiepresse SCRL v Google, Inc. [2007] ECDR 5 also thought that titles of articles may be regarded as works and thus possibly eligible to copyright protection.

91 _{[2010] All ER (D) 306 (Nov); [2010] EWHC 3099 (Ch). One of the defendants, Public Relations Consultants Association Ltd, appealed to the} UK Supreme Court on the applicability of the temporary copy exception in Public Relations Consultants Association Ltd v The Newspaper

Licensing Agency Ltd [2013] UKSC 18, which is discussed in Chapter 4.

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taken from the article reproduced in Meltwater News, together with the headline, constituted a substantial part of the article to which they relate. The defendants in the case argued that a 256 character extract wass too short and factual with the objective of giving readers a general idea of what the article was about and thus devoid of the author’s intellectual creation. The court referred to and followed the decision in Infopaq International A/S v Danske Dagblades Forening92 where the Court of Justice of the European Communities (ECJ) held that the use of ‘certain isolated sentences, or even certain parts of sentences in the text in question’ could constitute a reproduction within the purview of Article 2 of the Information Society Directive 2001/2993 (hereinafter referred to as ‘the Information Society Directive’) if they consist of originality or express the author’s intellectual creation.94 Accordingly, the court in Newspaper Licensing Agency Ltd95expressed that some of the extracts could amount to a substantial part of the protected works and thus prima facie constitutes copyright infringement.

The question of substantiality in relation to Google Books may be examined under the existing Malaysian copyright law with reference to the three factors adopted in Longman Malaysia Sdn

Bhd96 _{as discussed earlier. The first factor looks at the originality of the portion taken. It is noted}

the courts in Infopaq International A/S and Newspaper Licensing Agency Ltd determined the substantiality of the portion used by considering the author’s intellectual creation, which is a standard higher than ‘originality’.97 _{In Malaysia, ‘substantiality’ should be considered with regard}

92 _{[2009] All ER (D) 212 (Aug). The issue in the case was whether a search result showing a passage from the article comprising of the search} term and the five words immediately before and after it, eleven words in total, amounted to a substantial part of the article for copyright infringement purposes.

93 _{Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects of copyright and} related rights in the information society. Article 2 of the Information Society Directive provides for the reproduction right. It requires member states to provide for ‘the exclusive right to authorize or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part’ of protected works.

94 _{Supra n 92 at paras 44-48. As commented by Hoppner, the case of Infopaq was concerned with only the scanning and indexing of newspapers} for online services, however, the decision was phrased as such to be applicable to all types of works within the scope of the Information Society Directive. See Hoppner, T., ‘Reproductions in Part of Online Articles in the Aftermath of Infopaq (C-5/08): Newspaper Licensing Agency Ltd v Meltwater Holding BV [2010] EWHC 3099 (Ch)’, [2011] 33 EIPR Vol. 5, p. 331.

95 _{Supra n 91.}

96 _{Supra n 6. The three factors were listed by Ricketson: see Ricketson, loc. cit.} 97 _{Section 7(3)(a) of the CA 1987.}

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to originality of the portion used, which refers to sufficiency of effort being expended in the creation. It may weigh against Google if the extracts it displays in the search results show the necessary originality. This is a question of fact which is to be decided on a case-by-case basis. The second factor considers the purpose of the defendant in taking the portion. In the case of Google Books, the snippets shown in the search results offer users the information and nature of the relevant books so as to assist them in determining whether the books are of relevance to them. Besides, Google search results display the links to bookstores where the books may be purchased should the users find the books pertinent and may thus wish to get a copy, as well as links to libraries where the books may be available. Obviously the use of snippets by Google is intended to provide bibliographic information of the relevant books, instead of offering substitutes for the books, and thus its object differs from that of the book authors. The second factor should therefore weigh in favour of Google.

The third factor takes into account the impact of the defendant’s use on the sale of the original work. As stated earlier, Google Books’ search results come together with the links to bookstores from which the relevant books may be bought. This will promote the sale of the books instead of interfering with it. It is submitted that the third factor should find favour with Google too despite the fact that Google does derive significant and real revenue from advertising on the web pages. Copyright owners may claim, and in fact they have done so, that it is a commercial exploitation of their works and thus they should be compensated. This points to an aspect of the existing copyright laws that calls for a thorough contemplation: should copyright owners be given the exclusive right to control every possible exploitation of their works in future regardless of the fact that they may not venture into the new business model or the new exploitation is impossible without involving many other works as in Google Books. It is clear that such a project as Google Books requires

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substantial financial investment, effort, skill and manpower. As such, it is very unlikely to be undertaken by any individual copyright owner.

The extent of the monopoly enjoyed by copyright owners depends on the scope of the exclusive right conferred by copyright law to control certain acts in relation to copyright works. As discussed earlier, it may be crucial to re-consider the scope of ‘reproduction’ in the digital environment since nothing may take place without the making of a copy. The court in Infopaq International A/S98 held that the use of even certain parts of sentences could constitue a reproduction and this was followed in Newspaper Licensing Agency Ltd.99 Such approach illustrates a rather broad

interpretation on the scope of ‘reproduction’ and a stricter approach in respect of the de minimis rule, which has the effect of expanding significantly the rights enjoyed by copyright owners. The application of the same in relation to Google Books may result in the loss of a valuable and useful tool for the public to search and access information and knowledge.