Advocate General’s Opinion on the scope of the exception under Article 5(3)(n) of Directive 2001/29/EC

Advocate General (AG) Jääskinen came to the obvious conclusion when he reconfirmed that an EU Member State may authorise libraries to digitise books they hold in their collection in accordance with Article 5(2)(c) of the European Union Copyright Directive (EUCD), without the consent of the rightholders, so as to make them available on dedicated terminals on the library premises, in accordance with Article 5(3)(n) EUCD. More importantly, AG Jääskinen rejected the claim that exceptions may be “chained”, e.g. that the copy that may be made available on the library premises under Article 5(3)(n) may subsequently be transferred from the dedicated terminal to a user device under another exception.

In the case at hand, the German Bundesgerichtshof (Federal Court of Justice) asked the CJEU to clarify the scope of the exception under Article 5(3)(n) EUCD regarding publically accessible libraries which, for the purpose of research or private study, make works from their collections available to users by dedicated terminals. The reference to the CJEU stems from a dispute between the Technical University of Darmstadt and a German publishing house, Eugen Ulmer KG.

Firstly, in AG Jääskinen’s view, it is only when a licensing agreement between a rightholder and the library has already been concluded that the library may no longer avail itself of the exception provided for in favour of dedicated terminals.

Secondly, the AG considers that the EUCD allows Member States to grant libraries the right to digitise works from their collections, and make those works available to the public on dedicated terminals on the library premises. However, the AG makes clear that this does not permit the digitisation of a collection in its entirety, but only the digitisation of individual works.

Lastly, AG Jääskinen takes the view that Article 5(3)(n) EUCD does not allow users of a dedicated terminal to upload and save on, for instance, a USB stick a work that has been made available to them under an exception based on Article 5(3)(n). The AG does, however, not exclude that the printing out of a hard copy of a work made available on dedicated terminals could be covered by other exceptions provided for by the EUCD, such as a private copying exception.

The full text of the Opinion (dated 5 June 2014), which is not binding for the CJEU, is published on the CURIA website.