Public libraries may, under certain conditions, digitalise books in their collections without the author’s consent

On the 11th of September the European Court of Justice handed down a decision clarifying the lawfulness of the digitalisation of books by public libraries.

The Directive 2001/29/EC on the harmonization of certain aspects of copyright and related rights in the information society (the "Directive") provides for the author's right to prohibit unauthorized reproduction and communication to public of its works. The Directive also permits Member states to enact exceptions or limitations in relation to the above mentioned right. One such exemption allows libraries and other publicly accessible educational establishments to communicate or make available, on dedicated on-site terminals, protected works for the purposes of research or private study. Germany has implemented such an exception into the national legislation.

The case at hand concerned a dispute between the Technical University of Darmstad and Eugen Ulmer, a German publisher. The University digitised one of Ulmer's books in its collection and made it available to public through electronic reading points located in the University's library. The University further refused the offer of the publishing house to purchase and use the e-book. Ulmer sued the University for Copyright Infringement. On appeal, the Supreme Court of Germany requested clarification from the European Court of Justice in relation with the exception of the Directive that allows public libraries to make works available to users via dedicated terminals.

First of all the Court pointed out that, even if a right holder offers a public library the possibility to conclude licensing agreements, a library may always use the exception provided for in its' favour by the Directive if such an exemption has been implemented into the national law. Accordingly, the exception could not be excluded by existing contractual relations as, in such case, the library would be unable to realise its core mission which is to serve the public interest by promoting research and private study through the dissemination of knowledge.

In addition, the Court held that the Directive does not prevent Member States from allowing libraries to digitise books in their collections, where such digitisation is necessary for research or private study.

However the Court made clear distinction between the right of public libraries to make the digitised books available on dedicated terminals and the right of the individuals to print the books or store them on a USB stick. The Court stated that the right of digitalization of publicly accessible libraries cannot permit individuals to print the works on paper or to store them on a USB stick from dedicated terminals. Printing the work on paper or storing it on a USB stick would in fact create a new copy of the work made by a private person, which is not an act of communication protected under the research or private study exception, but an act of reproduction which is not covered by such exception. In this regard the Court nevertheless adds that that Member states may always allow an exception permitting library users to print digitised books or store them on a USB stick provided that fair compensation is paid to copyright holders.