European Public Libraries Have the Right to Digitize Works in their Collections with Some Limitations

On September 11, 2014, the European Court of Justice (ECJ) decided Technische Universität Darmstadt v Eugen Ulmer KG stating that European libraries may digitize books in their collection without permission from the rightholders. The decision confirmed a previous opinion of the ECJ's Advocate General, as reported here.

The ECJ noted that European law "must be interpreted to mean that it does not preclude Member States from granting to publicly accessible libraries [. . . ] the right to digitise the works contained in their collections . . . ." However, several caveats attach to this general statement. First, such act of reproduction must be necessary for the purpose of making those works available to users, by means of dedicated terminals, in public libraries, for the purpose of research or private study. (par. 46). Second, the ECJ recognizes this right provided that "specific acts of reproduction" are involved. Therefore, the public library may not digitize their entire collections. (par. 44-45). Third, "the number of copies of each work made available to users by dedicated terminals [cannot be] greater than that which those libraries have acquired in analogue format." (par. 48). Finally, "although [ . . . ] 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." (par. 48).

Also, as the ECJ clarified, this right 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. However, such acts may be authorised under national legislation transposing the exceptions or limitations included in Article 5(2)(a) or (b) of the Directive 2001/29/EC.

The full text of the opinion is available here.

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