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In a much anticipated and made public on Thursday, September 11, 2014 judgment, the Court of Justice of the European Union clarifies what is allowed by libraries when they launch a scanning project. According to the Court, libraries can digitize their collections even if the publishers can offer them the same works in a digital format. However, libraries can not allow their public to print or store the books on an USB stick except when the libraries comply with the conditions of the reprography and with the private copying exception (mainly the condition of payment of a just compensation to the advantage of the rightholders).

BACKGROUND

A German library has digitized and made available on dedicated computers (electronic reading points) ebooks that the library had previously scanned herself. Those points did not allow for a greater number of copies of that work to be consulted at any one time than the number owned by the library. Users of the reading points could print out the work on paper or store it on a USB stick, in part or in full, and take it out of the library in that form.

The scientific publishing house Ulmer had found one of their book that among the digitized and made ​​available to the public books. Ulmer then asked the library to remove the work in question and ask the library to accept her offer to purchase and use the textbooks it publishes as electronic books (‘e-books’), including the textbook at issue.

The LEGAL PROVISION CONCERNED BY THE DISPUTE

The matter of copyright is partially harmonized at European level through directives, the main dating from 2001 (note that that directive is still not yet fully implemented in Belgium – cfr our interview for Lettres numériques).

Through this Directive, EU Member States can implement in their law an exception allowing libraries to make available “for the purpose of research or private study, to individual members of the public by dedicated terminals on the premises of establishments referred to in paragraph 2(c) of works and other subject-matter not subject to purchase or licensing terms which are contained in their collections.” (Art. 5.3.n of the Directive).

The German library believes that this article allows it to refuse the license of Ulmer. The publisher claims him that once a publisher has digital versions of scanned books, it can impose its license to the library and force it to stop its scan project.

We can see that the whole issue is the interpretation that there has to be given to the expression “not subject to purchase or licensing terms” contained in the article 5.3.n.

THE ruling OF THE COURT OF JUSTICE

For the Court of Justice, if the libraries, beneficiaries of the exception contained in Article 5.3.n, have a right to make available their public digitized works, they inevitably have through the same provision the right to scan these works. The right to scan, will add to the Court, is ancillary to that provision and can not be construed so to unreasonably prejudice the legitimate interests of rightsholders.

Analyzing the situation in Germany, the Court notes, “it follows, first, from Article 52b of the UrhG (the German Copyright Act), that the digitisation of works by publicly accessible libraries cannot have the result of the number of copies of each work made available to users by dedicated terminals being greater than that which those libraries have acquired in analogue format. Secondly, although, by virtue of that provision of national law, the digitisation of the work is not, as such, coupled with an obligation to provide compensation, the subsequent making available of that work in digital format, on dedicated terminals, gives rise to a duty to make payment of adequate remuneration.” (Paragraph 48).

So the balance is respected on this issue in Germany.

Regarding the power of libraries to refuse publishers licenses if they have already digitized works, it would gut and forget the purpose of Article 5.3.n of the 2001 Directive to impose on library to sign a license agreement with a publisher as soon as the publisher has the books in digital format as well. Indeed, this article aims to promote research and private study. It is exactly what libraries do by making available their collections in digital form. This is, added the Court, “the core mission of publicly accessible libraries.” (paragraph 27 of the judgment).

Publishers could prevent the scan projects of the libraries only if they already have agreements with these libraries through “effective contractual relations” and through “the conclusion and implementation of existing contractual agreements that are at issue, and not mere prospects of contracts or licences.” (paragraph 30).

In addition, supporting the publishers thesis would remove the provision in question of its effectivenesssince, were it to be accepted, the limitation would apply, as Ulmer has maintained, only to those increasingly rare works of which an electronic version, primarily in the form of an e-book, is not yet offered on the market.” (paragraph 32).

THE FATE OF the REPRODUCTIONs CARRIED OUT BY USERS LIBRARY

In the last part of its decision, the Court had to rule on the fate of the print out and / or reproductions made by library users from the files submitted to them on the electronic reading points.

The Court will decide that the 5.3.n provision does not allow libraries to enable their public to print out fully or partially the scanned books and / or store them on a USB stick.

Indeed, these acts are carried out by the public and not by libraries, only recipients of the exception contained in Article 5.3.n of Directive 2001. These acts also can not “permitted under an ancillary right stemming from the combined provisions of Articles 5(2)(c) and 5(3)(n) of Directive 2001/29, since they are not necessary for the purpose of making the work available to the users of that work, by dedicated terminals, in accordance with the conditions laid down by those provisions. Moreover, since those acts are carried out not by the establishments referred to in Article 5(3)(n) of Directive 2001/29, but rather by the users of the dedicated terminals installed within those establishments, they cannot be authorised under that provision.” (paragraph 54 of the judgment).

This does not mean that library users can do nothing with these digitized works.

According to the Luxembourg Court, “such acts of reproduction of analog or digital may, where appropriate, be authorized under the national legislation implementing the exceptions or limitations provided for in Article 5, paragraph 2 a) or b) of the 2001/29 Directive, provided that in each case, the conditions imposed by these provisions, including one related to the fair compensation to be enjoyed by the copyright owner are met.” (paragraph 55).

In other words, library users could still print and / or photocopy the books after they have even printed out them or reproduce them directly on their USK stick, but no more in the context of the “research and private study” exception but only under the national implementation of the reprography (art.5.2a) and/or the private copying (art.5.2b) exceptions.

Mainly, the reproductions will only be licit if the rightholders are able to receive a fair compensation in exchange.

For an excellent review of the judgment in ENG, see here.

Pictures: Book and free ipad icon by Freepik – Hammer of Justice by Freepik free icon – Library created by Pieter J. Smits (Creative Commons – Attribution (CC BY 3.0))

Axel Beelen