European Union governments may allow libraries to digitise books in their collection without rights owners’ consent in order to make them available at electronic reading posts, the European Court of Justice (ECJ) said on 11 September. If library users want to print works out on paper or store them on a USB stick, however, rights holders must be fairly compensated.

The decision, Technische Universität Darmstadt v Eugen Ulmer KG,http://curia.europa.eu/juris/document/document.jsf?text=&docid=157511&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=289323 involves the refusal by a university library to buy and use an e-book published by Eugen Ulmer. Instead, it made the book available by computer without the publisher’s consent. The German Federal Court of Justice asked for clarification of the scope of the exception under the EU copyright directive (2001/29/EC) which allows publicly accessible libraries to make works available to users via dedicated terminals.

The ECJ held that even if a rights owner offers a library a licence agreement for use of the work on appropriate terms, the library may take advantage of the exception, since it otherwise could not fulfil its core mission of promoting research and private study. The directive doesn’t bar governments from giving libraries the right to digitise books, and, if necessary, from making the material available on dedicated computers, the court said.

But the right of communication which public libraries may hold doesn’t allow people to print out the works on paper or store them on USB sticks, because those are acts of reproduction which aim to create a new copy of the digital copy, the court said. Nevertheless, it added, member states may provide an exception or limitation that allows library users to print the works or store them on a USB stick, so long as compensation is paid to the rightsholder.

The decision appears to mean that the directive could allow member states to use the exception on dedicated terminal provision to allow users to make a copy, said European Publishers Council Executive Director Angela Mills Wade. But it’s unclear how remuneration would be paid, she said. This could conflict with normal exploitation and primary licensing if a user can print out and/or save part of the whole work, she said. “This is especially concerning since definitions around private study and research are not entirely clear and are difficult to control.”

The decision “is a positive outcome for libraries and archives,” said Vincent Bonnet, European Bureau of Library, Information and Documentation Associations (EBLIDA) director. While EBLIDA is still analysing the judgement, the text explicitly recognises the need to safeguard a fair balance between the rights and interests of different categories of rightsholders as well as between different categories of rightsowners and users of protected content, he said.

The decision, however, doesn’t mention online access to books digitised by a library, but limits the exception to dedicated terminals, Bonnet said. “This may prove to severely limit the effect” of the ruling, as it doesn’t address the full exploitation of digital technologies such as remote access to knowledge and culture, he said.

Another question left unanswered is whether dedicated terminals include iPads or mobile phones on library premises, he added.

Image Credits: Photo courtesy of Maria Elena, Flickr Creative Commons License 2.0