Opinion.

ECJ Ruling on Electronic Access to Books in Public Libraries

26/10/2014

At a glance

The European Court of Justice’s ruling in Technische Universität Darmstadt v Eugen Ulmer KG (Case C-117/13, 11 September 2014) struck a blow (albeit a minor one) to those who rely on the protection of copyright law.

A dispute arose between a German publishing house and a university library, after the library refused to buy and use the e-book offered by the publisher, instead, choosing to digitise its own copy of the book for the public to view on electronic reading points in the library.  The library also allowed users of the reading points to print out the work, or store it on a USB stick, and take it away from the library in that form.  The publisher claimed this was a breach of its copyright, but the library argued that it had the right to do so under an exception to copyright infringement, found in the Copyright Directive (2001/29/EC) which permits public libraries, educational establishments, museums and archives to make certain works available through dedicated terminals on their premises, for the purpose of research or private study (Article 5(3)(n)).  The Germans courts referred the matter to the ECJ to deliberate on the meaning of this Article.

In detail

Perhaps unsurprisingly, the ECJ confirmed that libraries are allowed to digitise books in their collection, if this is necessary for making the works available to the public.  The exception was there to allow libraries to fulfil their primary objectives in promoting research and private study, and it was obvious that libraries would need to digitise its books in order to take advantage of this exception. There was no requirement for the rightsholder to consent in advance, nor was there an obligation on the library to pay the rightsholder any form of compensation.  Making the books available on dedicated terminals was a limited form of communicating the work to the public, which did not conflict with the normal exploitation of the work.

Nevertheless, the judgment made it clear that the exception did not extend to printing the works from the library terminals on to paper, or storing them on USB sticks.  These were acts of reproduction which aimed to create a new copy of the digital version.  But, the ECJ added, Member States were free to provide a private copying exception through national legislation that would allow library users to print the work or store it on a USB stick, so long as fair compensation is paid to the rightsholder.

While this decision is certainly relevant to UK copyright law (a private copying exception is scheduled to be implemented in the UK on 1 October 2014) it fails to offer any guidance as to how remuneration should be paid to the rightsholder, and there is widespread concern that the ability to print out and/or save the whole or part of the work will conflict with the normal exploitation of copyright.

There are undoubtedly more questions to flow from this case, not least because of the narrow scope of the decision.  The judgment does not shed any light over whether “dedicated terminals” can include iPads, tablets or smart phones, nor does it address the issue of remote access.  It is particularly unhelpful that the ECJ limited its comments to storage on USB sticks, a form of technology which is fast becoming outmoded by the Cloud, so it seems only a matter of time before this topic is re-visited by the courts.

Information contained in this post does not constitute legal advice and is provided for informational purposes only. Recipients should not act upon it, but should seek legal advice relevant to their own situation.

Related articles