The European Court of Justice (ECJ) has provided guidance on the research and private study exception to copyright infringement for libraries, educational establishments, museums and archives in the Copyright Directive (2001/29/EC) (the Directive).
Authors, performers and producers enjoy an exclusive reproduction right in relation to certain types of creative work (Article 2, the Directive). Copyright owners also have the exclusive right to authorise or prohibit any communication to the public of their works and may claim fees in respect of such communication (Article 3, the Directive).
Article 5 sets out exceptions and limitations to Articles 2 and 3 of the Directive, including exceptions for public libraries, educational establishments, museums and archives making:
- Specific acts of reproduction, which are not for direct or indirect economic or commercial advantage (Article 5(2)(c), the Directive) (Article 5(2)(c)).
- Certain copyright works available through terminals on their premises for research or private study (Article (5)(3)(n), the Directive) (Article 5(3)(n)).
The Berne Convention for the Protection of Literary and Artistic Works requires that most exceptions to copyright must fulfil the following three-step test: the exception must be confined to certain special cases, must not conflict with normal exploitation of the work, and must not prejudice the legitimate interests of the rights owner (the Berne three-step test).
D operated a library where it installed electronic reading points permitting the public to consult the works in the library collection, including a book published by U. D had refused U’s offer to purchase e-book versions of certain textbooks in the library collection. U brought a claim against D in Germany for copyright infringement.
The German Regional Court referred questions about the interpretation of Article 5(3)(n) to the ECJ.
The ECJ held that the concept of “purchase or licensing terms” in Article 5(3)(n) required that the rightholder and an establishment (for example, a public library) must have concluded a licensing agreement setting out the conditions in which the establishment might use the relevant work. Offering to conclude a licensing agreement was not sufficient and would be inconsistent with the Berne three-step test.
Article 5(3)(n) did not stop EU member states from granting to public libraries the right to digitise the works contained in their collections if that act of reproduction was necessary for making those works available to the public at terminals within the libraries for the purpose of research or private study. The court called this the "ancillary right" of digitisation. The reference to “specific acts of reproduction” means that, in general, libraries must not digitise their entire collections.
Article 5(3)(n) did not extend to acts such as printing out of works on paper or their storage on a USB stick carried out by users from terminals within public libraries. These acts of reproduction went beyond those permitted under the ancillary right of digitisation since they were unnecessary for making the relevant work available to users of the work through dedicated terminals. In addition, the acts were not carried out by the libraries but by the users of the terminals. However, these acts might, if appropriate, be authorised under national legislation transposing the exceptions or limitations in Article 5(2)(a) or (b) of the Directive provided that, in each individual case, the conditions laid down by the provisions were met.
The ECJ’s interpretation of “purchase or licensing terms” is irrelevant under UK copyright law; the terms of section 40B of the Copyrights, Designs and Patents Act 1988, which implements Article 5(3), contain differences from Article 5(3)(n).
However, this decision is a novel linking of the two optional exceptions under Articles 5(3)(n) and 5(2)(c). The exception under Article 5(3)(n) refers to use by communication or making available to individual members of the public, but it does not refer to the reproduction of works, unlike Article 5(2)(c). The so called “ancillary right” of a library to digitise works in its collection in order to make them available on a public terminal is an example of purposive interpretation by the court.
By deciding that printing or storage onto USB sticks from library terminals was not permitted under Article 5(3)(n), the court avoided the issue of how, in practice, users could record the results of their research by leaving it to national courts to adjudicate on whether those activities fell within the photographic or private copying exceptions (where implemented).
Case: Technische Universität Darmstadt v Eugen Ulmer KG C‑117/13.
First published in the November 2014 issue of PLC Magazine and reproduced with the kind permission of the publishers. Subscription enquiries 020 7202 1200.