As such the copying of the extract around the search term in the monitoring reports could be a substantial part for the purposes of copyright infringement. The effect of Infopaq was that a very small part of the original could be protected by copyright if it “demonstrates the stamp of individuality reflective of the creation of the author or authors of the article”.
It is a question of fact and degree in each case as to whether substantial use has been made of the skill and labour which went into the creation of the original work. The Judge felt that many of the instances in this case did contain elements which were an expression of the intellectual creation of the author of the article as a whole. “In most cases the text extracts (and in particular the headline and the opening text) are not merely isolated words or clauses which in themselves convey no meaning. They provide the tone of the article and generally have the special function of drawing the reader into a work as a whole. As the text extract comprises not only the hit extract, but also the headline and opening text, it provides the End User with as clear an idea as possible of the subject-matter and content of the article”