Libraries in EU member states may digitize books in their collections without the consent of the copyright owners, allowing the work to be available at on-site electronic reading points, according to the Court of Justice of the European Union’s recent ruling on the case Technische Universität Darmstadt v Eugen Ulmer. The ruling does set limits to the extent a work can be disseminated, but still stands as a small victory for libraries and readers alike.

Background

The Technical University of Darmstadt (Germany) digitized the books contained in its collection, allowing the public to access them at electronic points installed in the library. It also permitted users to store the copies on USB sticks and print full or partial paper versions. The digitized works included one that was owned by publisher Eugen Ulmer KG, which objected to the digitization. The publisher offered the university the possibility of purchasing the ebook copy, but the university refused. Eugen Ulmer then started proceedings for copyright infringement.

Digitization without consent

The German Federal Court of Justice decided to refer the matter to the CJEU, which has now determined that the publisher’s act of offering a licensing agreement for the ebook version was not enough to exclude the application of an EU law giving member states the option to allow libraries and other educational facilities to make protected works available at on-site terminals. The court held that even if the rightholder offers to a library the possibility of concluding licensing agreements for the use of their works on appropriate terms, the library may avail itself of the exception provided for in favor of dedicated terminals; otherwise, the library could be prevented from "realizing its core mission and promoting the public interest."

The court also noted that digitization is often essential to making a work truly available through on-site terminals. The right of libraries to communicate, by dedicated terminals, the works they hold in their collections "would risk being rendered largely meaningless, or indeed ineffective, if those establishments did not have an ancillary right to digitize the works in question," wrote the court.

The CJEU did rule that the right to communicate did not extend as far as allowing libraries to permit users to print hardcopy versions of digitized works or store them on USB sticks for private, off-site access.

Find a complete background of the case and a summary of the advocate general’s decision here.

The text of the CJEU judgment is available here; the opinion of the advocate general is available here.