September 22, 2014
In a recent decision, the Court of Justice of the European Union determined that libraries are not required to obtain permission before creating digital copies of published books for distribution through library “electronic reading points.” The ruling in effect classifies this form of electronic content distribution as fair use, thus providing libraries with greater flexibility as they use digital technologies to provide access to their collections.
The electronic reading points at issue in this case are dedicated terminals that provide access only to library content. These dedicated terminals are not general use devices, instead they serve exclusively as gateways to library content.
This case was initiated by the Technical University of Darmstadt, which created a digital version of a book in its collection that had been published by the publisher, Eugen Ulmer. The publisher sought to require the University to obtain a license for the digital version. The University refused to license the material, contending instead that its action was protected as fair use.
The dispute was originally litigated in the Federal Court of Justice in Germany. The German Federal Court asked the Court of Justice of the E.U. to interpret the E.U. Copyright Directive as it applies to this case.
Although the Court of Justice concluded that libraries have the right to create digital versions of copyrighted works without permission, that authority is limited. In this case, the digital copy is accessible only through terminals that are dedicated to use of library content. Additionally, the Court of Justice noted that if readers are to be permitted to make copies of the digital material, print the material or download the material onto a USB or other storage device, fair compensation must be paid to the appropriate rights-holders.
The determination of the Court of Justice in this case is reasonable and important. In order to perform their vital functions of supporting education and research, libraries must have the ability to use digital technology actively to expand access to content in their collections. The Court of Justice properly recognized and supported critical library functions in this decision.
This case illustrates that the tension between copyright owners and libraries requires continuing attention. Copyright owners often resist efforts by libraries to expand their digital collections and to extend the scope of access to those collections. However, the ability of libraries to execute those expansion and extension efforts is vital to the successful performance of critical library functions in the digital environment.
Libraries continue to have a major role to play in the digital age. Copyright laws must be interpreted in ways which facilitate the efforts of libraries to play that role successfully. The Court of Justice appears to recognize the need to safeguard library access to digital content. Other courts around the world must also remain mindful of that important need.