Washington Journal of Law, Technology and Arts Volume 6, Issue 3 Winter 2011
How Much IS TOO Much? Copyright Protection OF Short Portions OF Text IN THE United States AND European Union AFTER Infopaq International A/S v. Danske Dagblades
Connor Moran(fn*)
Abstract
The recent case Infopaq International A/S v. Danske Dagblades Forening decided by the Court of Justice for the European Union could influence businesses that summarize or aggregate content. Under this ruling, excerpts of copyrighted material unproblematic in the United States could invite liability if reproduced in European Union member states. In the United States, copying words or phrases only infringes a copyright where those words or phrases are particularly unique or core to the original work. By contrast, the European Union Information Society Directive provides an exclusive right to even partial reproductions. In the Infopaq case, the European Court of Justice read the Directive to apply to eleven-word sentence fragments so long as those fragments demonstrated the author's intellectual creation. This article will examine the standards for copyright infringement of small sections of text in the United States and European Union after Infopaq.
Table of Contents
Introduction .................................................................................. 248
I. Law in the United States Treats Copying of Words or Phrases as Non-Infringement in Most Cases ......................... 249
A.Copying Short Words or Sentences Ordinarily Qualifies as De Minimis ................................................ 249
B.The Fair Use Doctrine Often Applies to Short, Copied Fragments ............................................... 251
II. EU Copyright Directives Offer at Least as Much, and Probably More, Protection to Copyright Holders .......... 252
III. The Infopaq Case .................................................................. 254
IV. Comparison of United States and EU Copyright Protection of Short Fragments After Infopaq .................................... 256
Conclusion: Excerpts In Europe May Infringe Copyright ........... 258
Introduction
In the United States, copyright law generally does not protect against fragmentary copying of single words or short phrases. The recent Court of Justice for the European Union ("ECJ") decision in the case Infopaq International A/S v. Danske Dagblades Forening(fn1) indicates protections in the European Union ("EU") may apply to such fragmentary copying. That case interpreted the EU Directive 2001/29/EC on the harmonization of certain aspects of copyright and related rights in the information society ("the Information Society Directive") to apply to eleven-word fragments copied from news articles where those fragments demonstrated the intellectual creation of the author. Because this ruling eliminates the possibility of a de minimis defense, EU protection of short text fragments is likely greater than that in the United States. However, disputes as to what qualifies as "intellectual creation" leave the exact contours of the right unclear.
This Article will examine treatment of fragmented copying in the United States, consider the EU Information Society Directive and the impact of Infopaq, and compare the United States and EU approaches.
I. Law in the United States Treats Copying of Words or Phrases as Non-Infringement in Most Cases
Under United States copyright law a defendant who copies short fragments of text can make two primary arguments that are based on the brevity of the copied material. First, a defendant could argue copying is de minimis and therefore the plaintiff cannot show substantial similarity necessary to support an infringement claim. Second, a defendant could argue that copying, although "substantial" for the purposes of the de minimis test, qualifies as fair use. This section will consider these two arguments in turn.
A. Copying Short Words or Sentences Ordinarily Qualifies as De Minimis
To make a prima facie case of copyright infringement in the United States, the plaintiff must show a defendant actually copied protected elements of copyrighted work and that defendant's product is "substantially similar" to the original work.(fn2) When copying is so minor the works are not substantially similar, the copying is de minimis and the prima facie case fails.(fn3)
Copyright does not protect all elements of a work, and therefore not all elements are considered when determining if copying rises above de minimis. Copyright only protects elements of a work that demonstrate some minimal creativity.(fn4) Copyright protection also extends to expression of ideas and facts, but not those ideas and facts themselves.(fn5) Factual works such as news articles demonstrate originality, if at all, with expressive factors such as arrangement and choice of words.(fn6) When a work contains both protected expressive elements and unprotected elements such as facts, a court determines whether the new work infringes by considering what elements are similar between the two and then determining whether copyright protects the similar elements.(fn7)
In practice, similar or identical words or phrases, without more, generally qualify as de minimis and therefore not infringement.(fn8 )However, courts have held works infringing based on single brief sentences when those sentences demonstrate particular originality or form the core of the protected work. For example, one court held it violated copyright law to use a sentence from the Night of the Living Dead screenplay-"When there is no more room in hell ... the dead will walk the earth"-in the promotional material of a competing film.(fn9) Other courts, while holding short copied sections not to infringe, have suggested particularly original or important segments or even single words might merit protection.(fn10)
When applying these rules to news article summaries, the United States Court of Appeals for the Second Circuit held one...
