To what extent are public libraries free to offer digitised versions of their books to their users? In his Opinion in case C-117/13 Technische Universität Darmstadt v Eugen Ulmer KG, Advocate General Jääskinen provides the CJEU with some suggestions as to how to answer this question in light of EU law.
The case concerns a dilemma that is of interest to many public libraries, in particular those attached to universities, such as in casu the library of the Technical University of Darmstadt (Germany): how to make accessible to a large public its resources, both on paper and in digital format. As many publishers nowadays offer their products both as printed books and as 'e-books', a library's choice in individual cases can be between a) buying a physical copy of a book and possibly digitising is, b) acquiring access to the digital version (e-book) of the work, and c) a combination of both. If a library already has a physical copy of a book in its collection, it will usually prefer the first option over the other two, for rather obvious economic reasons.
In the present case, the university library in Darmstadt had digitised a textbook on contemporary history ('Einführung in die neuere Geschichte') published by Eugen Ulmer KG. The publishing house seeks to prevent the library from this type of digitisation of the book and from making available the digital copy to library users via electronic reading points. Earlier, it offered the library the possibility to buy e-books of the textbook concerned, but the library did not make use of this offer.
AG Jääskinen considers that, as long as no licensing contract on the use of e-books has been concluded, the Copyright Directive does not prevent Member States from allowing a library to digitise books that are part of its collection. Neither does EU law stand in the way of having libraries make available digitised books through dedicated terminals. This particularly regards copyrighted works that are either old, fragile or rare, or that might suffer disproportionate wear because of a large number of students photocopying them.
However, according to the AG, the relevant provisions of EU law do not provide space to allow a library to digitise its entire collection, but regard individual works. Moreover, users of dedicated terminals should not be given the possibility to save digitised books on a USB device; they may print a paper copy.
The AG's Opinion is not yet available in English. A summary can, however, be found in the CJEU's press release regarding the case.
