Libraries may digitize books without permission

LibrariesThe Court of Justice of the European Union (CJEU) has ruled that European libraries may digitize books and make them available at electronic reading points without first coming to an agreement with the holder of the Copyrights (C‑117/13 dated 11 September 2014). Background of the Case and Subject Matter The university TU Darmstadt operates a regional and academic library in which it installed electronic reading points that allow the public to review works contained in the collection of that library. Since January 2009, those works have included the textbook of Schulze W., “Einführung in die neuere Geschichte” (“Introduction to Modern History”), published by Ulmer, a scientific publishing house established in Stuttgart, Germany. TU Darmstadt did not accept an offer of Ulmer to purchase and use the textbooks it publishes as electronic books on 29 January 2009. Nevertheless, TU Darmstadt digitized the textbook to make it available to users at electronic reading points installed in the library. Those points did not allow for a greater number of copies of that work to be consulted at any one time than the number owned by the library. But users of the reading points could print out the work on paper or save it on a USB stick. In view of this behavior of the TU Darmstadt, Ulmer filed a complaint in front of the Regional and the Higher Regional Court of Frankfurt. The Regional Court prohibited the possibility to get digital copies and the Higher Regional Court also regarded the opportunity to copy the book as impermissible. TU Darmstadt appealed to the German Federal Court of Justice against the last decision. But the Court was not sure about the interpretation of the Copyright Directive, which is essential for a decision. This Directive (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), permits Member States to provide for specific exceptions or limitations to the “normal” rights of copyright holders. One exception applies to public libraries which, for the purpose of research or private study, make works from their collections available to users by dedicated terminals. Therefore, the German Federal Court decided to stay the proceedings and asked the European Court of Justice to clarify the scope of this exception. Preliminary Ruling First the CJEU notes that under the EU Copyright Directive, authors have the exclusive right to authorize or prohibit the reproduction and communication of their works. However the Directive also allows for exceptions or limitations. This option exists notably for publically accessible libraries which, for the purpose of research or private study, make works from their collections available to users by dedicated terminals. The Court went on to find that the Directive does not prevent Member States from granting libraries the right to digitize the books from their collections, if it becomes necessary, for the purpose of research or private study, to make those works available to individuals by dedicated terminals. The right of libraries to communicate, by dedicated terminals, the works they hold in their collections would risk being rendered largely meaningless, or indeed ineffective, if they did not have an ancillary right to digitize the works in question. The Court adds that this ancillary right of digitization does not conflict with the normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the right holder, given that the German legislation at issue in this case provides that the number of copies of each work available on dedicated terminals must not be greater than that which those libraries have acquired in print format. Even if the rights holder offers a library the possibility of licensing his works under appropriate terms, the library can use the exception to publish works on electronic terminals. Otherwise, the library could not fulfill its core mission or promote the public interest in promoting research and private study. However, the CJEU also pointed out that it is not part of the right of communication to print out the works on paper or store them on a USB stick from dedicated terminals. This reproduction is not covered by the exception, particularly since the copies are made by individuals and not by the library itself. The CJEU decided that the library could however permit the users to print or store the works on a USB stick if, fair compensation is paid to the rights holder. The case will now go back to the German Federal Court of Justice to be decided.