EU's Highest Court Allows Libraries To Digitize Books Without Rightholder's Permission

from the balancing-the-books dept

Recently, Techdirt has reported on a number of decisions about copyright being handed down by the European Union’s highest court, the EU Court of Justice (EUCJ). Here’s another, this time involving the digitization of books (pdf). The case concerned a university library in Germany that wanted to digitize a book that it had purchased so as to be able to make it available electronically to its visitors. The publishing house tried to sell it an e-book of the work concerned that could be used for this purpose, but the library refused. Because it involved the EU Copyright Directive, the case was referred by the Federal Court of Justice in Germany to the EUCJ, which has now released the following decision:

the Court holds, first of all, that, even if the rightholder offers to 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 [permitted by the EU Copyright Directive] provided for in favour of dedicated terminals; otherwise, the library could not realise its core mission or promote the public interest in promoting research and private study.

Furthermore:

the Court finds that the directive does not prevent Member States from granting libraries the right 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.

In other words, since the EU Copyright Directive permits libraries to be given a right to use dedicated terminals to display works they already own, that would be meaningless if they couldn’t digitize those works first. Although that’s an eminently sane and reasonable result, copyright maximalists will doubtless complain about the erosion of their “rights”, since they seem to take it as axiomatic that every new use of material under copyright should result in a payment to them. Happily, once more the EUCJ seems to be trying to bring a little more balance to this most unbalanced of fields.

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Comments on “EU's Highest Court Allows Libraries To Digitize Books Without Rightholder's Permission”

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23 Comments
Whatever (profile) says:

Re: Re: Re: Re:

Too bad there isn’t a “vote troll” for your comments. As always, you add nothing to the discussion.

It’s a lose because they can only use them in the library, they cannot lend them, they cannot duplicate the, and so on. So instead of getting what would be really good (rights to duplicate and lend them out) they have only “in house” use. The decision in the end could be used to say that there is a line that cannot be crossed.

So it’s a “win” that may end up being a longer term loss.

Perhaps you should re-read my comments and try to understand where I was going, rather than just running out and trolling – although I give you credit for at least logging in for one of your comments.

PaulT (profile) says:

Re: Re:

“So while some libraries may want to digitize them, it may end up being too expensive to do.”

So, exactly as before, except that if they now wish to do so, they don’t have to jump through massive legal hurdles and expense to be able to do it? What a horrific loss, winning the right to do what they asked for within reasonable restrictions.

Is this one of the threads where you start redefining simple language and avoiding major points so that you can pretend you’re right? It must be hard, having to pore through every article to find something trivial to attack.

Whatever (profile) says:

Re: Re: Re:

Is this one of the threads where you start redefining simple language and avoiding major points so that you can pretend you’re right? It must be hard, having to pore through every article to find something trivial to attack.

No troll. RTFA and get a clue. They won certain rights, but like many things, defining this as yes and putting very strict limits on their use means that the other uses are not acceptable, making it a net loss. Yes, they can digitize, not they cannot lend the digitized copies. That’s a win that could very well be a longer term loss.

Anonymous Coward says:

Re: Re: Re: Re:

I agree completely. Copyright law is so fucked up, there is zero chance it will ever be fixed gradually, so the only hope for society is that it becomes so draconian that it causes a complete gridlock of the world economy, and basically blows up so it can be eliminated entirely.

Therefore, any small victory against copyright, is, in fact, a loss.

Whatever (profile) says:

Re: Re: Re:

I do also want to point out Paul that part of the issue is that it does not look like libraries will be able to share their digitized works with each other – that is to say that each much digitize their own. That is where the expense comes in, having someone paid to digitize the books for only your own use, not for lending, not to be moved outside of the facility, not to be copied… the “win” doesn’t give them very much room to work.

Anonymous Coward says:

Re: Re: Re: Re:

This is precisely how copyright has worked for individuals in Canada for years. In my view, it makes a fair bit of sense.

For works outside copyright, there’s no issue; the digitized versions can be shared with anyone.

For works inside copyright that have been made since digital copying became a “thing”, there’s no issue, as you can get the rights to store the digital copy as the original, and thus lend it out (via OverDrive and the like).

The issue is for works that are still under copyright but were produced before digitized distribution was part of the contracts. For these, Libraries are now able to make digital archives and have them available on-premises, which is a step forward from where things used to be, but as you state, still places limits on what some would consider fair use. HOWEVER, the original documents are still available for lending.

The only problem I see here is for situations where a document has been digitized, has no digitization clause in the publishing agreement, is under copyright, and the original document is lost in some manner other than being taken off-premises. In this case, the library is now stuck with a document that they cannot distribute (even to other libraries), cannot lend, but can store for eternity, or until the library closes (at which point, can they send their archive somewhere else, or do they have to destroy it?).

Anonymous Coward says:

"...this most unbalanced of fields."

The interesting thing is that, despite where it seems to be going, imaginary property is fundamentally unbalanced against copyright / IP holders. The IP laws are the only game in town for them, and if they don’t like what is on the table then they don’t have any other options.

Let’s face it, what else are most artists going to do? What else are the middlemen going to do? They can take their bat and ball and go home; they can refuse to play, but then it hurts them more than it hurts anyone else. (And if Bono would just stfu, it hurts no one).

The apparent imbalance for the field is because they have managed to (strike)bribe(/strike) convince lawmakers to ratchet up laws for their short-term benefit. The problem with ratchets is that they don’t make things looser or tighter. They make things tighter and tighter and tighter until SNAP. It will be interesting to see what happens when digital natives get to be adults, and start finding a voice against laws that criminalise activities that seem completely natural and sensible within the norms and technology they have grown up with.

nasch (profile) says:

Re: "...this most unbalanced of fields."


Let’s face it, what else are most artists going to do?

Find a business model that doesn’t depend on copyright. Believe it or not (and I suspect you don’t), they exist.


The apparent imbalance for the field is because they have managed to (strike)bribe(/strike) convince lawmakers to ratchet up laws for their short-term benefit. The problem with ratchets is that they don’t make things looser or tighter. They make things tighter and tighter and tighter until SNAP.

So you do see how it’s imbalanced after all.

Anonymous Coward says:

Consider the primary ramification of this decision: an EU library may digitize any book in its collection without the onerous task of first, identifying the rightholder, then enter into a possibly hostile and protracted financial negotiation with said rightholder. Prior to this decision, a library would have had to endure this process with each and every book it wished to digitize. Think of all the rare, out-of-print, or too-fragile-for-circulation books that could now be made available.

The secondary part of the decision – that a library can only make the digital copy available on the premises – is much more problematic. Would a researcher on another continent have to travel to the library to access the material? The thinking behind this part would indicate that, ab absurdo, the researcher would be compelled to wear a scratchy robe and travel by mule to the library.

One thing that wasn’t delineated in the decision (but which might exist in the arcana of the Copyright Directive) is a point typical of copyright fuckery – once a digital copy is made, would the library have to remove the original from circulation? Would the library have to destroy the original?

Anonymous Coward says:

Re: Re:

The secondary part of the decision – that a library can only make the digital copy available on the premises – is much more problematic.

from the ruling:-

[permitted by the EU Copyright Directive] provided for in favour of dedicated terminals;

While use of SSH, or RDP might be pushing things a little, libraries could use dedicated terminals to connect to other libraries systems as needed.

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