Background
The Copyright Directive (Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society), permits Member States to provide for specific exceptions or limitations to the normal rights of copyright holders. One exception applies to public libraries which, for the purpose of research or private study, make works from their collections available to users by dedicated terminals.
In Case C-117/13 Technische Universität Darmstadt v Eugen Ulmer KG, the Bundesgerichtshof (Federal Court of Justice of Germany) asked the Court of Justice to clarify the scope of this exception.
The Bundesgerichtshof has to rule on a dispute between the Technical University of Darmstadt (Technische Universität Darmstadt) and a German publishing house, Eugen Ulmer KG. The university library digitised a textbook by Winfried Schulze entitled Einführung in die neuere Geschichte (Introduction to Modern History), published by Eugen Ulmer, before making it available on its electronic reading posts. The university library refused the offer of the publishing house to purchase and use as electronic books (‘e-books’) the textbooks Eugen Ulmer publishes (the book in question among them). Eugen Ulmer is seeking to prevent the university from digitising the book in question and users of the library from being able, via the electronic reading points, to print out the book or store it on a USB stick and/or take those reproductions out of the library.
Judgment
The CJEU held that, even if the copyright holder offers to a library the chance to conclude licensing agreements for the use of works on appropriate terms, the library may avail itself of the exception relating to dedicated terminals; otherwise, the library could not realise its core mission or promote the public interest in promoting research and private study.
The Court went on to find that the Directive does not prevent Member States from granting libraries the right 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. The Court adds that this ancillary right of digitisation does not conflict with the normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the rightholder, given that the German legislation at issue in this case provides that the number of copies of each work available on dedicated terminals must not be greater than that which those libraries have acquired in analogue format.
However, the CJEU took the view that that right of communication cannot permit individuals to print out the works on paper or store them on a USB stick from dedicated terminals because such acts are acts of reproduction and are not necessary for communicating the work to users by means of dedicated. Nevertheless, the CJEU states that 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.
