BREAKING NEWS: CJEU says that libraries may digitise books and make them available at e-reading points, and that licences do not prevent exceptions

Another copyright-ful day at the Court of Justice of the European Union (CJEU)! 

This morning the Court issued its decision in Case C-117/13 Technische Universität Darmstadt v Eugen Ulmer KG [not yet available -- press release here], a reference for a preliminary ruling from Germany's Bundesgerichtshof, seeking clarification as to the meaning and scope of relevant exception(s) under Directive 2001/29/EC (the InfoSoc Directive).

Background

As this blog reported at the time when the case was refereed, the background proceedings concern unauthorised digitisation of one book by a university library (the Darmstadt Technical University) to allow its electronic consultation from the library terminals. Incidentally, these also allow users to print out on paper or store on a USB stick the works made available for consultation there.

Back in 2009 the library in question digitised a history book by Winfried Schulze without obtaining the authorisation of the copyright owner first, this being the publisher of the book (Ulmer). 

A sample of Merpel's
own digital library - historic section

The library then made the digital version available to its users. In this respect, the number of "digital" readers could not exceed the number of analogue copies [= one] of the book that were actually available in the library’s collection. 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.

Ulmer 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."

Thus, the court decided to stay the proceedings and refer the following questions to the CJEU:

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? 

Bert has also tried sleeping on digital books,
but he warns you that they are not
as good as analogue ones for your back

The AG Opinion

IPKat readers will remember the Opinion [another one not yet available in English!] of Advocate General (AG) Jääskinen on 5 June last [here], in which he stated that: 

• A Member State may authorise libraries to digitise, without the consent of the rightholders, books they hold in their collection so as to make them available at electronic reading points; 
• While the InfoSoc Directive does not allow Member States to authorise users to save a book digitised by a library onto a USB stick [among other things, allowing this would have nothing to do with preserving the effectiveness of Article 5(3)(n) exception], it does not prevent, in principle, the book from being printed as a private copy [this means that this activity could be covered by another exception, ie that for private copying within Article 5(2)(a) of the InfoSoc Directive];
• Even if the rightholder offers a library the possibility of concluding licencing agreements for the use of his works on appropriate terms, the library may avail itself of the exception provided for in favour of dedicated terminals. It is only when such a contract has already been concluded that the library may no longer avail itself of the exception;
• In any case the InfoSoc Directive permits not the digitisation of a collection in its entirety, but only the digitisation of individual works. It is particularly important not to opt to use dedicated terminals where the sole purpose of doing so is to avoid the purchase of a sufficient number of physical copies of the work. 

The decision

According to the press release, this morning the CJEU ruled that "Member States may, within certain limits and under certain conditions, including the payment of fair compensation to rightholders, permit users to print out on paper or store on a USB stick the books digitised by the library."

More specifically, the Court held that:

How convenient:
Even if you sign here to grant your voice,
you will keep your copyright exceptions 

• Even if the rightholder offers a library the possibility of concluding licencing agreements for the use of their works on appropriate terms, the library may avail itself of the exception provided for in favour of dedicated terminals [this is particularly interesting: contractual override of copyright exceptions has always been a hot (and problematic) issue]; 
• The InfoSoc Directive does not prevent Member States from granting libraries the right [an ancillary right that does not conflict with the three-step test (which is about exceptions and limitations by the way) according to the press release, but of what sort?] to digitise 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 digitise the works in question;
• However, that right of communication which may be held by publicly accessible libraries cannot permit individuals to print out the works on paper or store them on a USB stick from dedicated terminals. The printing out of a work on paper and its storage on a USB sticks are acts of reproduction, in so far as they aim to create a new copy of the digital copy made available to individuals. Such acts of reproduction are not necessary for communicating the work to users by means of dedicated terminals and are therefore not covered by the right of communication by means of dedicated terminals, particularly since they are made by individuals and not by the library itself;
• This said, Member States may, within the limits and conditions set by the directive, provide for an exception or limitation to the exclusive right of reproduction of rightholders and thus permit the users of a library to print the works out on paper or store them on a USB stick from dedicated terminals. For that, it is necessary in particular that fair compensation be paid to the rightholders [really? How about the de minimis rule in Recital 35?].

A more detailed analysis will follow as soon as the judgment becomes available, so stay tuned!


UPDATE @ 10:10 -- The judgment is now available here