A member state is not in breach of EU copyright law if it were to legislate so as to permit its national public libraries to digitise books in their collection in order to make them available at electronic reading points, without the consent of the copyright holder, the Court of Justice of the European Union has affirmed.
EU copyright law provides that authors have the exclusive right to authorise or to prohibit the reproduction and the communication to the public of their works. However, it allows member states to legislate for specific exceptions or limitations to such an exclusive right. Germany made use of such an option and German law allows public libraries to make works from their collections available to users electronically even without the consent of the copyright owner.
A German court was requested to rule on a dispute between a German University and a German publishing house. The university library digitised a book published by the publishing house before making it available on its electronic reading posts. The publishing house sought 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.
The German Court made a preliminary reference to the CJEU requesting the latter court to clarify the scope of the discretion made available to member states in terms of the EU’s Copyright Directive. The CJEU observed that the directive does not prevent member states from granting libraries the right to digitise books from their collections for the purpose of research or private study and to make such works available to individuals via dedicated terminals. Such rights are part and parcel of a library’s right to communicate the works that it holds in its collection.
The Court opined that, in this particular case, this right to digitise does not conflict with the normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the right-holder. This was so since the German law in question provides that the number of copies of each work available on dedicated terminals must not be greater than that which the libraries have already acquired in another format.
On a different note, the Court noted that individuals are not as a rule allowed to print out the works on paper or store them on a USB stick from dedicated terminals. This would mean that further copies of the digital copy made available would be created and therefore would be in breach of the exclusive right of reproduction of right holders guaranteed by copyright law.
Such acts of reproduction do not fall under a library’s right to communicate the works in its collection since the copies are being made by individuals and not by the library itself. The Court did, however, concede that national laws may permit the users of a library to print the works out on paper or store them on a USB stick from dedicated terminals provided that fair compensation be paid to the right-holders.
In an era of digitisation, this ruling provides some much needed clarity as to what is permissible and what is not in terms of copyright law.
A balance must clearly be sought between the rights of intellectual property owners to be compensated for their works and effort and that of the general public not to be unduly hampered in obtaining access to these same works in any format available.
mariosa@vellacardona.com
Mariosa Vella Cardona is a freelance legal consultant specialising in European law, competition law, consumer law and intellectual property law.