‘An act occurring during a data capture process, which consists of storing an extract of a protected work comprising 11 words and printing out that extract, is such as to come within the concept of reproduction in part within the meaning of Article 2 of Directive 2001/29, if the elements thus reproduced are the expression of the intellectual creation of their author; it is for the national court to make this determination.’Lionel Bently lamented this decision, which he believes is revolutionary in a bad kind of way because the simple test lacks the subtlety of English law. Lord Hoffmann, by contrast, thought nothing had changed: Infopaq perfectly matches the existing English approach. Lord Hoffmann, it might be observed, has demonstrated a distaste for obscure ancient case law and a knack with Occam’s razor (paring down interpretation of contracts in Investors Compensation Scheme and patents in Kirin-Amgen).
Is it possible, however, that some of the historic judicial approaches to substantiality may not have been rendered entirely redundant in determining the potentially complex question of whether a copied part includes ‘expression of intellectual creation’ (a phrase that gathers together a roomy collection of abstract concepts)? Of those previous judicial considerations that are no longer relevant, how many can we not live without – or have already been put out to grass?