The team is joined by Guest Kats Rosie Burbidge, Stephen Jones, Mathilde Parvis, and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Hayleigh Bosher, Tian Lu and Cecilia Sbrolli.

Wednesday, 26 February 2014

CJEU to decide on the present and future of book scanning and library activities

Gigi and Lassie were
enjoying a quiet morning ...
Oh my! Yes, it sometimes happens that even copyright-loving creatures (Kats in this case) may overlook references to the Court of Justice of the European Union (CJEU) on copyright issues. 

While browsing one of her favourite websites - this being Harper's Bazaar and the 100 Best Red Carpet Gowns the calendar of beloved CJEU activities (no need to add anything else) -, this Kat noticed that this morning the Court heard Case C-117/13 Technische Universität Darmstadt v Eugen Ulmer KG, a reference for a preliminary ruling from Germany seeking clarification as regards digitisation of works by university libraries, and relevant exception(s) under Directive 2001/29/EC (the InfoSoc Directive).

In a nutshell the core issue on which the Bundesgerichtshof [the German Federal Court of Justice] is seeking guidance from the CJEU is whether, following the scanning of a book by a university library to allow its electronic reading, the book publisher may prevent further unauthorised reproductions of the book, say by means of library terminals that allow library users to print out on paper or store on a USB stick [do they still exist, wonders Merpel?] the works made available there. 

As explained by helpful resource EU Law Radar [to which - sighs once again Merpel - it is not however possible to subscribe to receive email updates] and the Goethe Institut, the background to this case is as follows.

... Until usually calm
Merpel brought
news of this new CJEU case
The collection of the Darmstadt Technical University library includes a history book by Winfried Schulze [probably this guy], which the library scanned in 2009 [without authorisation from the copyright holder, this being the book publisher] and made available to its users. In this regard, the number of simultaneous readers of the digital version could not exceed the number of analogue copies [= one] of the book that were actually available in the library’s collection [although this is quite common term, does it make sense?]. However, users of the digital version could print or save in their devices (such as USB memory sticks) excerpts from the book or even the book in its entirety. It is not difficult to imagine that, once the user had saved the work in his/her device, he/she could access it even from outside the library.

The publisher (Ulmer) of the book was not particularly happy with the library's arrangements and, following a failed attempt to offer the university the possibility of purchasing its own ebooks, it brought proceedings for copyright infringement over unauthorised scanning of Schulze's book and other works.

Following partial victory before the Landgericht of Frankfurt am Main (Frankfurt District Court), both parties appealed before the Bundesgerichtshof, which wondered whether the university could actually rely on the exception pursuant to Article 52b of the German Copyright Act [this is the transposition into German law of Article 5(3)(n) of the InfoSoc Directive], which so states:

"So far as there are no contractual provisions to the contrary, it shall be permissible to make published works available from the stocks of publicly accessible libraries, museums or archives, which neither directly nor indirectly serve economic or commercial purposes, exclusively on the premises of the relevant institution at terminals dedicated to the purpose of research and for private study. In principle, reproduction of a work in excess of the number stocked by the institution shall not be made simultaneously available at such terminals. Equitable remuneration shall be paid in consideration of their being made available. The claim may only be asserted by a collecting society."

So, the court decided to stay the proceedings and refer the following very important questions to the CJEU:

Can you let your library users
print out copies of this masterpiece?
1. Is use subject to purchase or licensing terms within the meaning of Article 5(3)(n) of Directive 2001/29/EC where the rightholder offers to conclude with the estab­lishments referred to therein licensing agreements for the use of works on appropriate terms? 
2. Does Article 5(3)(n) of Directive 2001/29/EC entitle the Member States to confer on the establishments the right to digitise the works contained in their collections, if that is necessary in order to make those works available on terminals? 
3. May the rights which the Member States lay down pursuant to Article 5(3)(n) of Directive 2001/29/EC go so far as to enable users of the terminals to print out on paper or store on a USB stick the works made available there? 

This case looks like one to follow closely. This is because of: (1) topicality of book scanning in general [yes: thinking of the Google Books saga, on which see here and here]; (2) national reform debates as regards exceptions and limitations [eg UK forthcoming revised exceptions for libraries and archives]; EU reform debate as regards - among other things - revision of the InfoSoc Directive; (4) international reform debates as to whether we should all embrace fair use [Australia thinks so: see here]; (5) finally: it's a CJEU case! This means that we may expect some fairly interesting outcomes ...


Anonymous said...

> the number of simultaneous readers of the digital version could not exceed the number of analogue copies

Well, perfectly ok in the old world of chopped and milled trees.

But in a world of electrons being stored in one-thousanth of a cubic micrometer for representing information and where information can be made available to virtually anybody (with a PC/tablet/etc.), why be conservative and kill technological progress? Because you just cannot make that shift of paradigm from cellulosis to silicon?

Having said that, IP rights are to be respected. And by letting people copy freely and asking 10% of the physical book lending fee, you may end up with more money in your pocket than by licensing only one copy at the full fee.

Wake up, Publishers.

Anonymous said...

The statement "the number of simultaneous readers of the digital version could not exceed the number of analogue copies" cannot be true if additional copies of the library digital version are allowed to be made.

I hesitate to put any veracity into further comments by a Kat that makes such a basic mistake.

If in fact anti-copy technology is in place to make the digital version truly analogous to a hard-copy version (not quite as easy as it would first seem to do, by the way), then, and only then would the legal protections discussion be able to proceed.

Yes, copying today is made so incredibly easy (in speed and in accuracy of content), that the notion of 'copyright' itself seems quaint and anachronistic.

Be that as it may, until the laws are changed, they are still the laws. Rights are still rights. Violations of rights are still violations. And just because someone finds it personally convenient to violate a law does not - in itself - mean the law should just go away.

Anonymous said...

Traditionally it has been permissible to photocopy a limited quantity of a book in a library for personal use; it would seem to be a bad thing if one were not allowed to similarly copy or print out at least a limited quantity of an e-book.

I'm interested as to where this might leave journals. A journal from which one cannot print out selected articles onto paper to read more closely is a journal not worth subscribing to, in my humble view. But perhaps that issue is handled explicitly in contracts or waivers between libraries and publishers and/or their collecting societies.

Jheald said...

@Anon 17:42

It's easy enough to disable copying from a dedicated terminal if it's your terminal and you want to -- simply disable the USB ports, and don't provide user access to email, file transfer, printing etc.

It's your terminal, you can set the rules.

But insisting that people can only take hand-written notes from material, if you are a university library say, is really going to cripple the value of those books for research.

If such restrictions were required, would such ebooks still be worth buying?

(Yes, I know this specific case is about scanning; but the questions go further than that, to touch on all materials in electronic form made available in libraries).

Anonymous said...

But anti-copy technology does not make "the digital version truly analogous to a hard-copy version". hard-copy versions can still be copied, with the appropriate facilities. Here, users were downloading portions to their USB sticks, thereby making a further copy. This is an act by the user, not by the library. Just as photocopying a whole book, or writing out longhand an article, is an act by a user. The existence or otherwise of anti-copy technology is irrelevant to the actions of the library, or indeed to the actions of the user. The users are responsible for their actions, not the library, and if they infringe copyright, they should certainly make compensation.

Anonymous said...

Anonymous at 18:13,

Your "act of the user" defense fails in copyright matters under certain conditions.

See Napster.

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