Research and Private Study Exception to Copyright Infringement for Libraries

In this case the Technical University of Darmstadt digitized a book in its possession, of which the copyright belongs to publisher Eugen Kulmer KG. The university wanted to grant visitors access to the digitized version of the book through special electronic reading points inside the university’s library. In addition, the university wanted to allow visitors to print the book and store it on a personal USB stick. Although copyright grants the author the exclusive rights to authorize or prohibit reproductions and communications of the public of their works, exceptions or limitations can be made for, for example, personal use or study purposes. According to the ECJ press release the publisher Eugen Ulmer sought to prevent the university from digitizing the book and also wanted to prevent users of the library from printing out the book or copying it to a USB stick for use outside the library. The Federal Court of Justice of Germany asked the ECJ to clarify the scope of exceptions and limitations to reproduction and communications to the public, of the EU Copyright Directive 2001/29 (Directive).

Libraries exceptions of reproduction and communication

The ECJ stated that under the 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 to that right. According to the ECJ press release: “The option for exceptions or limitations 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 right of communication however does not permit individuals to print out the works on paper or store them on a USB stick from dedicated terminals. The printing or storing of copyrighted works on a USB stick are considered to be acts of reproduction, thus creating a new copy of the digital copy made available to individuals. Such acts of reproduction are not necessary for communicating the work to the users and are therefore not covered by the right of communication. Particularly since the copies are made by the individuals and not by the library itself. “However according to the ECJ: ”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 digitized by the library”. More specifically, the ECJ stated that, even if the rightholder offers the library the possibility of concluding licensing 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; otherwise, the library could not realize its core mission or promote the public interest in promoting research and private study.

With this ECJ judgment, libraries are allowed to digitise books and make them available at electronic reading points without obtaining prior consent of the rightholder. However, visitors are not allowed to use the terminals to print out the works or store them on a USB stick, because that would constitute a copy of the work. Therefore, printing the work or storing it on a USB stick is only allowed if a fair compensation is paid to the rightholder. In it’s ruling the ECJ followed the opinion of Advocate General Niilo Jääskinen. He stated that libraries should be allowed to digitise books without consent, but copying an electronic book to a USB stick or printing it, should be illegal.

The ECJ does not decide the dispute itself so the case will now go back to the Federal Court of Justice of Germany. It is for the national court or tribunal to dispose of the case in accordance with the ECJ’s decision, which is binding on other national courts or tribunals before which a similar issue is raised. Now that the ECJ ruled that private copies are allowed if a fair compensation is granted to the rightholder, the question may arises what the relation is to the lending of e-books. On this issue preliminary questions were also been referred to the ECJ. The Court of Appeal of The Hague (The Netherlands) gave a judgment in the trial procedure between The Dutch Association of Public Libraries (Vereniging van Openbare Bibliotheken) and Stichting Leenrecht (Dutch interest group for the public lending right) on lending of e-books. The Court of Appeal decided to refer the case on the 3th of September 2014 to the ECJ in order to get answers on preliminary questions with regards to the legal position of e-lending. The Dutch Court seeks for more clarification if the current lending provisions applies to e-books as well.

To be continued!