Should a public library be allowed to let users take away copy books on a USB stick for free? The European Court says no. But they can let users view digital copies on library terminals.
The library of Darmstadt Technical University digitised some of its text books, and made them available on terminals to library users. One of the books in question was an Introduction to Modern History by Winifried Schulze - no doubt a thrilling read that many readers would want to take home. Although the number of users accessing the book at any one time was restricted to the number of hard copies on the shelves, the library also allowed users to print out paper copies and take away a digital copy on their own USB sticks.
The publisher of the book, Eugen Ulmer, complained. They offered e-book versions of many of their publications, including this one. Why shouldn’t the library purchase an e-book version rather than making their own digital copy? And why should further copies made by students be allowed?
Copyright law tries to find a delicate balance between protecting the rights and revenues of authors and publishers, and other public interest objectives such as promoting learning and culture. The InfoSoc Directive includes a list of exceptions to copyright protection that are optional for member states as they try to balance the scales.
In fact, the UK is in the process of implementing a group of new exceptions from this list with some already in effect and a couple of others dealing with copies for personal use and quotation and parody due to come in at the start of October.
The optional exception here concerned making available books on dedicated library terminals for research or private study by individual members of the public. The court accepted that the InfoSoc Directive did give Germany the option of allowing libraries to digitise the books in their collections and make them available on library terminals.
A tricky point came up around the wording of the exception in the English, French and German versions of the Directive. Did the exception still apply where the publisher had offered a licence of the e-book? The court said that it did. The library must have an ancillary right to digitise a book in its collection or the exception would become meaningless. In its press release the court refers to the library’s ‘core mission’ and role in promoting research and private study.
But the paper copying and copying onto USB sticks went too far. This went beyond ‘making available’ into ‘reproduction’ and would not be allowed under this exception. A country could authorise this type of copying separately, however, if it followed the rules of the InfoSoc directive, including compensation arrangements.
This decision highlights the lack of consistency in copyright law among EU states, with this exception being just one of a list of optional carve outs from protection.