CJEU rules on digitizing and electronic access to works in public libraries
The CJEU ruling has to be seen against the background of a long-lasting dispute between publishers and public libraries in Germany about how to interpret Section 52b of the German Copyright Act. This section implements Article 5 (3) lit. n) of the InfoSoc Directive into German law. The case started before the Regional Court of Frankfurt back in 2009 and eventually made its way to the German Federal Court of Justice in Karlsruhe. There, the proceedings were stayed and, in total, three questions were referred to the CJEU.
The first question focussed on whether a library may rely on Article 5(3) lit. n) of the InfoSoc Directive only if there is no (reasonable) digital offering by the respective publisher. Alternatively, one could read the provision as if it applied to all works that were not already subject to licence terms. The CJEU answers the question in favour of the latter interpretation.
The second question concerned the scope of the exception set out in Article 5 (3) lit. n) of the InfoSoc Directive. The provision does not explicitly refer to the right of reproduction however the CJEU's view is that reproduction is permitted as a legitimate act of preparation for the later use of the digitized work at a terminal inside the library. The judges particularly referred to Article 5 (2) lit. c) of InfoSoc Directive as grounds for their decision
Finally, the third question related to whether the library user may be allowed to make paper copies of the electronically displayed work or even download the data on a storage device. As a preliminary note, the CJEU says that Article 5 (3) lit. n) of the InfoSoc Directive is not about what the user may or may not do. The provision is aimed at public libraries. They are entitled to digitize and display the work. However, whereas Article 5 (3) lit. n) of the Copyright Directive may not be relied upon, the judges made clear that the library user may very well ground his right of reproduction on other exceptions and limitations set out in the directive. The CJEU refers to Article 5 (2) lit. a) and lit. b) of the InfoSoc Directive as examples. In this context, the court emphasizes that the respective conditions of the exception at issue must be fulfilled. Particularly, the author must receive adequate compensation for such reproduction. What is remarkable here is the fact that the CJEU, unlike the Advocate General in his pleadings, does not distinguish between an analogue and a digital copy.
It is now up to the German Federal Court of Justice to render a decision on the merits of the case. Given that Section 53 (1) of the German Copyright Act provides for a right to make copies for private use and taking into consideration that Section 52b refers to an adequate compensation of the author, the chances are that in future library users may look up the required works at the terminals and may copy those parts they need for their studies on paper or a USB stick.
Technische Universität Darmstadt was represented before court by Hogan Lovells lawyers Nils Rauer and Diana Ettig.