Library is allowed to digitalise books for research or private study without permission
11-09-2014 Print this page
The concept 'purchase of licensing terms'in Article 5(3)(n) Copyright Directive includes that the concept of 'purchase or licensing terms' provided for in Article 5(3)(n) of Directive 2001/29 must be understood as requiring that the rightholder and an establishment, such as a publicly accessible library, referred to in that provision 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.
"32 In addition, if the mere act of offering to conclude a licensing agreement were sufficient to rule out the application of Article 5(3)(n) of Directive 2001/29, such an interpretation would be liable to negate much of the substance of the limitation provided for in that provision, or indeed its effectiveness, since, 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."
Digitisation of a work constitutes an act of reproduction of the work.
"37 The first point to be noted is that the digitisation of a work, which essentially involves the conversion of the work from an analogue format into a digital one, constitutes an act of reproduction of the work."
Making a work available to the public, by terminals installed within a library according to article 5(3)(n) is an act of communication.
"42 It follows that, in circumstances such as those of the case in the main proceedings, where an establishment, such as a publicly accessible library, which falls within Article 5(3)(n) of Directive 2001/29, gives access to a work contained in its collection to a ‘public’, namely all of the individual members of the public using the dedicated terminals installed on its premises for the purpose of research or private study, that must be considered to be ‘making [that work] available’ and, therefore, an ‘act of communication’ for the purposes of Article 3(1) of that directive (see, to that effect, judgment in Svensson and Others, EU:C:2014:76, paragraph 20)."
When it is necessary to make works available via dedicated terminals, the copyright directive does not stand in the way of member states granting libraries accessory rights to digitalize works.
"49 Having regard to the foregoing considerations the answer to the foregoing considerations, the answer to the second question is that Article 5(3)(n) of Directive 2001, read in conjunction with Article 5(2)(c) of that directive, must be interpreted to mean that it does not preclude Member States from granting to publicly accessible libraries covered by those provisions that right to digitse 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."
Printing of a digital work on paper or saving it on a portable USB drive can be considered a reproduction.
"52 It is undisputed that acts such as the printing out of a work on paper or its storage on a USB stick, even if made possible by the specific features of the dedicated terminals on which that work can be consulted, are not acts of ‘communication’, within the meaning of Article 3 of Directive 2001/29, but rather of ‘reproduction’, within the meaning of Article 2 of that directive.
53 What is involved is the creation of a new analogue or digital copy of the work that an establishment makes available to users by means of dedicated terminals."
Printing of works on paper as well as saving works on portable USB drives do not fall under article 5(3)(n); they are permitted under article 5(2)(a) and (b) when all conditions have been fulfilled, such as reasonable payment.
"57 Having regard to the foregoing considerations, the answer to the third question is that Article 5(3)(n) of Directive 2001/29 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, carried out by users from dedicated terminals installed in publicly accessible libraries covered by that provision. However, such acts may, if appropriate, be authorised under national legislation transposing the exceptions or limitations provided for in Article 5(2)(a) or (b) of that directive provided that, in each individual case, the conditions laid down by those provisions are met."
IPPT20140911, CJEU, TU Darmstadt v Eugen Ulmer
C117/13 - ECLI:EU:C:2014:2196
