COPYRIGHT AND THE DIGITAL AGENDA: The Research Exception in Libraries: Technische Universitat Darmstadt v. Eugen Ulmer KG.
| Author | Woodhouse, Holly |
The Digital Agenda for Europe, which seeks to optimise the benefits of information technologies for economic growth across the European Union as part of the Europe 2020 strategy, builds on the work undertaken over the last few years under the digital libraries initiative. (2) With this in mind, and with 2020 rapidly approaching, the German case of Technische Universitat Darmstadt ['TU Darmstadt'] v. Eugen Ulmer KG ['Ulmer'], (3) which reached the Court of Justice of the European Union [CJEU] in 2014, raises some important practical considerations as to how the pan-European agenda towards digitisation is implemented by individual Member States, as well as the challenges faced by rightholders, who are often at the sharp end of copyright law in an increasingly digital landscape.
TU Darmstadt v. Ulmer was seen as a model case upon which to get a preliminary ruling on the copyright exception contained in Article 5(3)(n) of the Directive 2001/29 [the InfoSoc Directive], under which Member States may provide for exceptions or limitations to the right to reproduce and communicate to the public, (4) for the purposes of research or private study, at dedicated terminals in publicly accessible libraries, as well as museums, archives and educational establishments, works contained in their collections which are not subject to purchase or licensing terms. (5)
The UK implemented the exception in 2014, (6) and the case therefore has particular relevance for museums in Britain, which are increasingly focused on digitisation strategies to engage audiences, as it offers guidelines as to how dedicated terminals may be used by them for the purpose of making works from their collections available to the public for research and private study.
The German legislature also implemented Article 5(3)(n) of the InfoSoc Directive with section 52B of the German Copyright Act, (7) which provided for the communication of works at terminals dedicated for the purpose of research and for private study, in public libraries, museums and archives, subject to equitable remuneration through a collecting society. (8)
THE FACTS
At the beginning of 2009, TU Darmstadt, which operates an academic library, digitised the textbook at issue, Einfuhrung in die neuere Geschichte by Winfried Schulze, published by Ulmer, so as to make it available to members of the public at dedicated reading terminals installed on the premises.
In the same year, Ulmer made an offer to TU Darmstadt to purchase the textbook as an e-book. TU Darmstadt refused the offer of the licence but continued to make the digital version of the textbook available to users of the dedicated terminals. The library also offered guidelines as to the scope of permissible uses at the dedicated terminals. Although the dedicated terminals did not allow for a greater number of copies of the book to be consulted at any one time than the library held in its collection, in accordance with national law, users were permitted to not only search and read the book, but also print out the work or store it on a USB stick, in part or in full, and take it out of the library.
Ulmer issued a warning letter alleging that the range of functions available to users went beyond section 52B of the German Copyright Act and consequentially triggered legal proceedings in March 2009.
In March 2011, the Regional Court of Frankfurt held that the rightholder and the establishment must have reached prior agreement on the digital use of the work for section 52B of the German Copyright Act not to apply. As mentioned above, in this case, TU Darmstadt and Ulmer never concluded any licensing terms. The Court also rejected Ulmer's application which sought to prohibit TU Darmstadt from digitising the textbook at issue, but it did grant Ulmer's request to prohibit users of the dedicated reading terminals from printing and storing the works on USB sticks. TU Darmstadt appealed and the case went to the Federal Court of Justice, which stayed proceedings and referred the following questions to the Court of Justice of the European Union:
(1) Is a work subject to purchase or licensing terms, within the meaning of Article 5(3)(n) of Directive 2001/29, where the rightholder offers to conclude with the establishments referred to therein licensing agreements for the use of that work on appropriate terms?
(2) Does Article 5(3)(n) of Directive 2001/29 entitle the Member States to confer on those 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 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? (9)
QUESTION 1
In relation to licensing agreements, the interpretation of Article 5(3)(n) favoured by Ulmer was that a mere offer to conclude a licensing agreement with TU Darmstadt was sufficient to negate the application of the provision, provided the offer was 'appropriate'. Ulmer claimed that having rejected its offer to purchase the textbook in a digital format, TU Darmstadt could no longer exercise its right to use the textbook by communicating it or making it available for the purpose of research or private study.
The court found that this implied that the rightholder could unilaterally deny libraries the right to benefit from the limitation, thereby preventing them from realising their public interest mission. (10) As such, the CJEU held that the answer to the first question was that the concept of 'purchase or licensing terms' provided for in Article 5(3)(n) must be understood as requiring that the rightholder and the establishment to have concluded a licensing agreement in respect of the work in question and set out the conditions for which that establishment may use the work. (11) The mere prospect of a contract or licence was insufficient to rule out the application of Article 5(3)(n).
Analysis
Whereas Article 5(3)(n) of the InfoSoc Directive specifies that the limitation is applicable to "works and other subject-matter not subject to purchase or license terms", paragraph 52B of the German Copyright Act referred to the...
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