The Nevada District Court has confirmed that the scanning of photographs into a computer will infringe copyright, even if the image only has a brief existence in the computer’s RAM.
Tiffany Design Inc produced an aerial photograph of the Las Vegas Strip. Another company, Reno-Tahoe Specialty, produced its own digitally altered photographic image of the Las Vegas Strip, incorporating elements of Tiffany Design’s image. Reno-Tahoe scanned the image and took at least six buildings from it for its own image.
Tiffany Design succeeded in its claim that the intermediate scanning of its photograph infringed copyright. However, it has yet to be decided whether the final image infringed copyright. Reno-Tahoe argued that use of the six buildings was not substantial enough to infringe copyright and the case continues.
The UK position is effectively the same. Electronic storage, even if only transient, is an infringing act. The difficulty for copyright owners is that damages are normally based on usage. If someone infringes copyright by scanning a whole image, but then transfers only “insubstantial” portions of it into their own published image, it will be difficult to claim damages for scanning based on the usage of the final image.
By contrast, the making of cache copies of works transmitted via the Internet, and other “transient and incidental acts of reproduction” which have no independent economic significance, are due to be specifically exempted under a proposed EC Copyright Directive.