The CJUE rules over the digitisation of Works by libraries

15.10.2014

On the 11th of September, 2014, the CJEU cleared the rules concerning digitisation in its decision on the Case C-117/13, TU Darmstadt. 
 
The object of the Case C-117/13 is the digitization of a book from a public library, in order to place it at the disposal of users at electronic reading terminals installed in the library.  The users could print the full work, or part or it, or save it on a USB stick and take it out of the library. This digitalisation provoked a lawsuit in Germany between the Darmstadt Technical University’s publicly accessible library and

Eugen Ulmer KG, the publisher of the book at hand. 

In order to resolve the dispute, the Court had to firstly determine the scope of the provisions that Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society devotes to libraries.  Its article 5.2(c) of the Directive warns that the Member States “may” provide for exceptions or limitations in respect of specific acts of reproduction made by publicly accessible libraries, educational establishments or museums, or by archives, which are not for direct or indirect economic or commercial advantage.  The Directive adds in its article 5.3(n) that Member States “may” provide for exceptions or limitations with respect to use by communication or making available, for the purpose of research or private study, to individual members of the public by dedicated terminals on the premises of libraries of works and other subject-matter not subject to purchase or licensing terms which are contained in their collections.

At the same time, the Court examines three questions in order to support its decision:

The first question examined by the Court is whether a work is subject to ‘purchase or licensing terms’.  The Court concluded that the concept of ‘purchase or licensing terms’ provided in the Directive 2001/29 must be understood as requiring that the right holder and the library “must have concluded” a licensing agreement in respect of the work in question that sets out the conditions in which that establishment may use that work. This ensures that this case is included in the exception in article 5.3.n.

The second question examined by the Court contemplates whether Article 5(3)(n) must be interpreted to mean that it precludes Member States from granting to publicly accessible libraries covered by that provision “the right to digitise the works contained in their collections”, if such act of reproduction is necessary for the purpose of making those works available to users, by means of dedicated terminals, within those establishments. The Court’s reply was affirmative meaning that the Directive does not preclude Member States from granting to publicly accessible libraries covered by those provisions the right to digitise the works contained in their collections, if such act of reproduction is necessary for the purpose of making those works available to users.

The third and last question examined by the CJEU is whether libraries should be granted the right to make works available to users by certain terminals which permit the printing out of those works on paper or their storage on a USB stick. 

The response of the Court isn’t as clear as the previous ones:

1. The Directive must be interpreted to mean that it does not extend to acts such as the printing out of works on paper or their storage on a USB stick.

2. On the other hand, such acts may be authorised under national legislation provided that, in each individual case, two conditions are met: (i) the rightholder must receive a fair compensation and (ii) the extent of the texts reproduced may not unreasonably prejudice the legitimate interests of the rightholder.

From now on, libraries will have to revise how they act keeping in mind national laws as well as the limitation provided in the Directive and the CJEU’s interpretation of that limitation.

Written by: Athena Poysky

Source: http://elzaburu.blogspot.com.es/2014/09/el-tjue-mueve-ficha-la-digitalizacion.html

Image: goXunuReviews. Under creative commons license. (CC BY 2.0)

 

 

 

 



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