CJEU to decide on the present and future of book scanning and library activities

Gigi and Lassie were
enjoying a quiet morning ...

Oh my! Yes, it sometimes happens that even copyright-loving creatures (Kats in this case) may overlook references to the Court of Justice of the European Union (CJEU) on copyright issues. 

While browsing one of her favourite websites - this being Harper's Bazaar and the 100 Best Red Carpet Gowns the calendar of beloved CJEU activities (no need to add anything else) -, this Kat noticed that this morning the Court heard Case C-117/13 Technische Universität Darmstadt v Eugen Ulmer KG, a reference for a preliminary ruling from Germany seeking clarification as regards digitisation of works by university libraries, and relevant exception(s) under Directive 2001/29/EC (the InfoSoc Directive).

In a nutshell the core issue on which the Bundesgerichtshof [the German Federal Court of Justice] is seeking guidance from the CJEU is whether, following the scanning of a book by a university library to allow its electronic reading, the book publisher may prevent further unauthorised reproductions of the book, say by means of library terminals that allow library users to print out on paper or store on a USB stick [do they still exist, wonders Merpel?] the works made available there. 

As explained by helpful resource EU Law Radar [to which - sighs once again Merpel - it is not however possible to subscribe to receive email updates] and the Goethe Institut, the background to this case is as follows.

... Until usually calm
Merpel brought
news of this new CJEU case

The collection of the Darmstadt Technical University library includes a history book by Winfried Schulze [probably this guy], which the library scanned in 2009 [without authorisation from the copyright holder, this being the book publisher] and made available to its users. In this regard, the number of simultaneous readers of the digital version could not exceed the number of analogue copies [= one] of the book that were actually available in the library’s collection [although this is quite common term, does it make sense?]. However, users of the digital version could print or save in their devices (such as USB memory sticks) excerpts from the book or even the book in its entirety. It is not difficult to imagine that, once the user had saved the work in his/her device, he/she could access it even from outside the library.

The publisher (Ulmer) of the book was not particularly happy with the library's arrangements and, following a failed attempt to offer the university the possibility of purchasing its own ebooks, it brought proceedings for copyright infringement over unauthorised scanning of Schulze's book and other works.

Following partial victory before the Landgericht of Frankfurt am Main (Frankfurt District Court), both parties appealed before the Bundesgerichtshof, which wondered whether the university could actually rely on the exception pursuant to Article 52b of the German Copyright Act [this is the transposition into German law of Article 5(3)(n) of the InfoSoc Directive], which so states:

"So far as there are no contractual provisions to the contrary, it shall be permissible to make published works available from the stocks of publicly accessible libraries, museums or archives, which neither directly nor indirectly serve economic or commercial purposes, exclusively on the premises of the relevant institution at terminals dedicated to the purpose of research and for private study. In principle, reproduction of a work in excess of the number stocked by the institution shall not be made simultaneously available at such terminals. Equitable remuneration shall be paid in consideration of their being made available. The claim may only be asserted by a collecting society."

So, the court decided to stay the proceedings and refer the following very important questions to the CJEU:

Can you let your library users
print out copies of this masterpiece?

1. Is use subject to purchase or licensing terms within the meaning of Article 5(3)(n) of Directive 2001/29/EC where the rightholder offers to conclude with the estab­lishments referred to therein licensing agreements for the use of works on appropriate terms? 

2. Does Article 5(3)(n) of Directive 2001/29/EC entitle the Member States to confer on the establishments the right to digitise the works contained in their collections, if that is necessary in order to make those works available on terminals? 

3. May the rights which the Member States lay down pursuant to Article 5(3)(n) of Directive 2001/29/EC go so far as to enable users of the terminals to print out on paper or store on a USB stick the works made available there? 

This case looks like one to follow closely. This is because of: (1) topicality of book scanning in general [yes: thinking of the Google Books saga, on which see here and here]; (2) national reform debates as regards exceptions and limitations [eg UK forthcoming revised exceptions for libraries and archives]; EU reform debate as regards - among other things - revision of the InfoSoc Directive; (4) international reform debates as to whether we should all embrace fair use [Australia thinks so: see here]; (5) finally: it's a CJEU case! This means that we may expect some fairly interesting outcomes ...