On 11 September 2014, the Court of Justice of the European Union (CJEU) has given judgment in Case C-117/13, Technische Universität Darmstadt v Eugen Ulmer KG, a reference from the German Bundesgerichtshof (Federal Court of Justice).
In the case at hand, the university library digitised a book published by Eugen Ulmer, made it available on its electronic reading posts, but refused the offer of the publishing house to purchase and use as electronic books the textbooks Eugen Ulmer publishes. (IFRRO reported about the Advocate General’s Opinion here.)
The Court now held that scanning copyright-protected works forming part of libraries’ and archives’ collections may be undertaken by the libraries and archives in question, even if publishers offer electronic access or digital copies of such works on reasonable terms and conditions instead. Only where libraries and archives are bound by existing agreements to the contrary, will these actual agreements override reliance on the exception contained in Article 5(3)(n) of EU Directive 2001/29. Also, the EU Directive 2001/29/EC does not prevent EU Member States from granting libraries the right to digitise books from their collections, for the purpose of research or private study, to make these works available to individuals on dedicated terminals.
However, the right of communication, which may be held by publicly accessible libraries, cannot permit individuals to print out the works on paper or store them on a USB stick from dedicated terminals, as these are acts of reproduction, aiming to create a new copy of the digital copy made available to individuals. EU Member States may, nonetheless, provide for an exception or limitation to the exclusive right of reproduction, in order to permit the users of a library to print the works on paper or store them on a USB stick from dedicated terminals, provided that fair compensation is paid to the rightholders.