|A sample of Merpel's |
own digital library - historic section
|Bert has also tried sleeping on digital books,|
but he warns you that they are not
as good as analogue ones for your back
- A Member State may authorise libraries to digitise, without the consent of the rightholders, books they hold in their collection so as to make them available at electronic reading points;
- While the InfoSoc Directive does not allow Member States to authorise users to save a book digitised by a library onto a USB stick [among other things, allowing this would have nothing to do with preserving the effectiveness of Article 5(3)(n) exception], it does not prevent, in principle, the book from being printed as a private copy [this means that this activity could be covered by another exception, ie that for private copying within Article 5(2)(a) of the InfoSoc Directive];
- Even if the rightholder offers a library the possibility of concluding licencing agreements for the use of his works on appropriate terms, the library may avail itself of the exception provided for in favour of dedicated terminals. It is only when such a contract has already been concluded that the library may no longer avail itself of the exception;
- In any case the InfoSoc Directive permits not the digitisation of a collection in its entirety, but only the digitisation of individual works. It is particularly important not to opt to use dedicated terminals where the sole purpose of doing so is to avoid the purchase of a sufficient number of physical copies of the work.
According to the press release, this morning the CJEU ruled that "Member States may, within certain limits and under certain conditions, including the payment of fair compensation to rightholders, permit users to print out on paper or store on a USB stick the books digitised by the library."
More specifically, the Court held that:
Even if you sign here to grant your voice,
you will keep your copyright exceptions
- Even if the rightholder offers a library the possibility of concluding licencing agreements for the use of their works on appropriate terms, the library may avail itself of the exception provided for in favour of dedicated terminals [this is particularly interesting: contractual override of copyright exceptions has always been a hot (and problematic) issue];
- The InfoSoc Directive does not prevent Member States from granting libraries the right [an ancillary right that does not conflict with the three-step test (which is about exceptions and limitations by the way) according to the press release, but of what sort?] to digitise the books from their collections, if it becomes necessary, for the purpose of research or private study, to make those works available to individuals by dedicated terminals;
- The right of libraries to communicate, by dedicated terminals, the works they hold in their collections would risk being rendered largely meaningless, or indeed ineffective, if they did not have an ancillary right to digitise the works in question;
- However, that 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. The printing out of a work on paper and its storage on a USB sticks are acts of reproduction, in so far as they aim to create a new copy of the digital copy made available to individuals. Such acts of reproduction are not necessary for communicating the work to users by means of dedicated terminals and are therefore not covered by the right of communication by means of dedicated terminals, particularly since they are made by individuals and not by the library itself;
- This said, Member States may, within the limits and conditions set by the directive, provide for an exception or limitation to the exclusive right of reproduction of rightholders and thus permit the users of a library to print the works out on paper or store them on a USB stick from dedicated terminals. For that, it is necessary in particular that fair compensation be paid to the rightholders [really? How about the de minimis rule in Recital 35?].
UPDATE @ 10:10 -- The judgment is now available here