The Court of Justice of the EU rules on the right of libraries to digitise books

In its judgment of 11 September in case C-117/13, the Court of Justice of the European Union declared that Member States may authorise libraries to digitise, even without permission from right holders, books they hold in their collection in order to make them available at electronic reading points.

The ruling originated from a dispute between Technische Universität Darmstadt (Technical University of Darmstadt) and Eugen Ulmer KG, a German publishing house. The university library had digitised a book published by Eugen Ulmer and made it available to users on electronic reading points installed in its library, refusing Ulmer’s offer to purchase and use its works as electronic books (‘e-books’). The publishing house therefore sought to prevent both the library from digitising the book and users of the library from being able to print out the book or save it to a USB stick.

The request for a preliminary ruling made by the Bundesgerichtshof (Federal Court of Justice of Germany) concerned the interpretation of Article 5(3)(n) of Directive 2001/29/EC (“Copyright Directive”), a rule that had also been transposed into German national law:

“3. Member States may provide for exceptions or limitations to the rights provided for in Articles 2 and 3 in the following cases: (…
n) use by communication or making available, for the purpose of research or private study, to individual members of the public by dedicated terminals on the premises of establishments referred to in paragraph 2(c) of works and other subject-matter not subject to purchase or licensing terms which are contained in their collections.”

First of all, the Court stated that the library may benefit from an exception provided for in favour of dedicated terminals even if the right holder offers libraries licensing agreements on appropriate terms for the use of their works as electronic books (and the library does not accept the offer). Otherwise, libraries could not realise their fundamental mission or foster the public interest in promoting research and private study.

The Court then added that a Member State can grant publicly accessible libraries “the right to digitise the works contained in their collections, if such act of reproduction is necessary for the purpose of making those works available to users, by means of dedicated terminals, within those establishments”. The right of communication granted to libraries would risk being rendered largely vacuous, as well as ineffective, if the libraries did not have an ancillary right to digitise the works contained in their collections. However, the Court specified that, as a general rule, the establishments may not digitise their entire collections.

Regarding the third question referred for a preliminary ruling, the Court held that Article 5(3)(n) of the Directive does not permit individuals to print out the works on paper or store them on a USB stick from dedicated terminals in libraries. Such acts are acts of reproduction under Article 2 of the Copyright Directive, insofar as they aim to create a new copy of the digital copy made available to individuals, and they are not necessary for communicating the work to users by means of dedicated terminals.

Nevertheless, the Member States can provide for an exception or limitation to the right holders’ exclusive right of reproduction and thus permit the users of a library to print the works out on paper or store them on a USB stick, provided that, in each individual case, the conditions laid down by the Copyright Directive are met. Such exceptions or limitations may be authorised under Article 5(2)(a) or (b) of the Directive. In such cases, it is particularly necessary that fair compensation is paid to the right holders.

In Italy, an exception to the authors’ exclusive right of communication to the public is provided for in favour of libraries in Article 71-ter of the Law no. 633 of 22 April, 1941:

“1. The communication or making available to individual members of the public is free if made for the purpose of research or private study by dedicated terminals on the premises of publicly accessible libraries, educational establishments, museums or archives, limited to the works and other subject-matter contained in their collections that are not subject to purchase or licensing terms.”