The Court of Justice of the European Union (CJEU) has ruled that Member States may authorise libraries to digitise books held in their collection and to make them available at electronic reading points.
On 11 September 2014 the CJEU ruled on a preliminary reference, made from the German courts, relating to the question of whether a publisher can prevent unauthorised electronic reproductions of a book being made available at electronic reading terminals.
- In 2009, the library of Darmstadt Technical University in Germany digitised a book without obtaining authorisation from the publisher, making it available at dedicated terminals to its users. Users were allowed to print out or store the book on to a USB.
- Although the number of ‘digital’ readers could not exceed the number of copies of the book available in the library’s collection, users were free to print or save excerpts or even the whole book.
- Copyright infringement proceedings began after the University failed to accept the publisher’s offer to purchase its ebooks.
- After a judgment in the Frankfurt District Court, both parties appealed on the point of whether the university could rely on the re-publication exceptions in the relevant German copyright law. The question was referred to the CJEU.
The CJEU found that Member States may, within certain limits and under certain conditions, permit libraries to:
- Digitise books from their collections, if it becomes necessary for the purpose of research or private study, and to make the digitised books available to individuals at dedicated electronic terminals.
- Opt to rely on the exceptions to copyright infringement contained in relevant domestic and European law, even if the copyright holder offers the library the opportunity to enter into a licence agreement for use of the books in electronic format.
However, the copyright infringement exception does not extend to the libraries allowing individuals to print out the works onto paper and/or store the works on USB sticks. This would be a further unauthorised reproduction. In these circumstances, library users can print out the works and/ or store on USB sticks on the basis that fair compensation be paid to the copyright holders.
So what happens now?
- The dispute will now be referred back to the German national court for determination in light of the CJEU ruling
- Subject to determination from the German courts, other national courts are likely to endorse the ruling and implement the interpretation of the European copyright infringement exception for libraries.
What does this mean for libraries?
- Libraries can digitise books they have in their collection and make them available for access at electronic reading terminals.
- If allowing users to print and save works to USB sticks then consider engaging with copyright holders to obtain permission for such activity.
- Libraries should not be held to ransom by copyright holders as there remains ‘de minimis’ exceptions to copyright infringement which allows small excerpts of works to be reproduced.