European Union: The European Court Allows Libraries To Digitise Books Without Copyright Holder’s Consent

The European Court of Justice has further clarified what libraries may do under European copyright law with books in their collection. In Technische Universität Darmstadt v. Eugen Ulmer KG the ECJ considered the scope of an exception in the European Copyright Directive that allows libraries to make books in their collections available to users via dedicated terminals. The ECJ held that this exception entails the right to digitise books without the copyright holder's permission. Copyright holders should be aware that the ECJ has now specifically stated that offering appropriate licensing terms will not stand in the way of libraries using this exception.

Background

This case concerned a dispute in Germany between the Technical University of Darmstadt (TU Darmstadt) and Eugen Ulmer KG (Ulmer), a German publisher. TU Darmstadt digitised one of Ulmer's books in its collection and made it available to the public through electronic reading points located in the university library. The library ensured that the number of people reading the electronic copy could not exceed the number of analogue copies available in the library, but it was possible to print, or save on a USB stick, all or sections of the book. Ulmer sued TU Darmstadt for copyright infringement. On appeal, the Supreme Court of Germany referred preliminary questions to the ECJ, seeking clarification on the digitisation of works at university libraries and on the exception under the European Copyright Directive that allows public libraries to make works available to users via dedicated terminals.

The ECJ's ruling

That Ulmer had offered TU Darmstadt the opportunity to purchase and use electronic textbooks, including the disputed book, did not mean that TU Darmstadt could only use the book under the terms of that licensing offer. The library would otherwise be unable to realise its core mission, namely to serve the public interest in promoting research and private study through the dissemination of knowledge. This was the most notable aspect of the ECJ's ruling. In addition, the ECJ held that the EU Copyright Directive does not prevent Member States from allowing libraries to digitise books in their collections where this digitisation is necessary for research or private study. This includes making the digitised books available on dedicated terminals, but does not include the right to print the books or store them on a USB stick. That would in fact create a new digital copy of the work by a private person, which is not an act of communication protected under the research or private study exception, but an act of reproduction not covered by the exception. But the ECJ did rule that member states may allow an exception permitting library users to print digitised books or store them on a USB stick provided that fair compensation is paid to the copyright holders.

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