The rules of play as far as digitisation is concerned are a little clearer now thanks to the decision of the Court of Justice of the European Union (CJEU) of 11 September 2014 in Case C-117/13 TU Darmstadt, or are they?
The decision stems from a lawsuit in Germany between the Darmstadt Technical University’s publicly accessible library and Eugen Ulmer KG, the publisher of a contemporary history book. The library had digitised the book in order to place it at the disposal of users at electronic reading terminals installed in the library. Users of the reading terminals could print the full work, or part of it, out on paper, or save it onto a USB stick and take it out of the library. Furthermore, the University had not agreed to the publisher’s proposal of acquiring and using the manuals published by the latter in e-book format.
The parties’ positions had been backed by other Federations and Associations of Libraries and Publishers, given the significance of the case and the “pilot” nature of the proceedings, as they were described by the Advocate General himself.
Besides certain provisions of German law, the decision examines the scope of the provisions that Directive 2001/29 devotes to libraries. Article 5.2(c) of the Directive warns that the Member States “may” provide for exceptions or limitations in respect of specific acts of reproduction made by publicly accessible libraries, educational establishments or museums, or by archives, which are not for direct or indirect economic or commercial advantage. Article 5.3(n) adds that Member States “may” provide for exceptions or limitations with respect to 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 libraries of works and other subject-matter not subject to purchase or licensing terms which are contained in their collections.
As has been typical for some time now, the Court blows hot and cold in its decision.
The first issue raised by the Court is whether a work is subject to ‘purchase or licensing terms’, within the meaning of Article 5(3)(n) of Directive 2001/29, where the rightholder has offered to conclude with an establishment referred to in that provision, such as a publicly accessible library, on appropriately worded terms a licensing agreement in respect of that work. Ulmer argued that the mere fact that the rightholder offers to conclude a licensing agreement with a publicly accessible library is sufficient for ruling out the application of Article 5(3)(n) of Directive 2001/29.
However, the Court dismisses this interpretation and concludes that the concept of ‘purchase or licensing terms’ provided for in Article 5(3)(n) of Directive 2001/29 must be understood as requiring that the rightholder and the library “must have concluded” a licensing agreement in respect of the work in question that sets out the conditions in which that establishment may use that work. So the exception cannot be ruled out.
Secondly, the Court contemplates whether Article 5(3)(n) of Directive 2001/29 must be interpreted to mean that it precludes Member States from granting to publicly accessible libraries covered by that provision “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 Court’s answer is affirmative: the Directive does not preclude Member States from granting to publicly accessible libraries covered by those provisions 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.
Lastly, the CJEU tackles the issue of whether libraries should be granted the right to make works available to users by dedicated terminals which permit the printing out of those works on paper or their storage on a USB stick. This is where the decision seems to leave things up in the air somewhat:
– On the one hand, the Court finds that Directive 2001/29 must be interpreted to mean that it does not extend to acts such as the printing out of works on paper or their storage on a USB stick, carried out by users from dedicated terminals installed in publicly accessible libraries covered by that provision.
I- On the other hand, it nevertheless adds that such acts may, if appropriate, be authorised under national legislation provided that, in each individual case, two conditions are met: (i) the rightholder must receive a fair compensation and (ii) the extent of the texts reproduced may not unreasonably prejudice the legitimate interests of the rightholder.
From now on, libraries will have to revise how they act in light of the way in which national laws narrow down or expand upon the limitation provided in the Directive and the CJEU’s interpretation of that limitation.
Antonio Castán, Partner ELZABURU SLP.
– Read the JUDGMENT OF THE COURT (Fourth Chamber)