European Libraries Don't Need Permission to Digitize Books in Their Collection, Says Advocate General of the ECJ

Recently, an Advocate General with the European Court of Justice (ECJ) handed down an opinion in Technische Universität Darmstadt v Eugen Ulmer KG stating that European libraries may digize individual books in their collection without permission from the rightholders.

In this dispute, the German Federal Court of Justice asked the ECJ to clarify the scope of the exception to the right of reproduction and communication to the public for publically accessible libraries, which make works from their collections available to users by dedicated terminals. Eugen Ulmer KG, a German publishing house, sought to prevent (i) the Technical University of Darmstadt from digitizing a book in its collection published by Eugen Ulmer and (ii) users of the library from printing the book or saving it on a USB stick, (iii) after the university refused the offer of Eugen Ulmer to purchase and use as e-books the textbooks it publishes.

Preliminary, the Advocate General considers 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 provided for in favour of dedicated terminals."

Additionally, according to the Advocate General, European law does not prevent Member States "from granting libraries the right to digitize the books in their collections," so as to make them available at electronic reading points. However, the opinion clarifies that the InfoSoc Directive 2001/29/EC does not permit "the digitization of a collection in its entirety, but only the digitization of individual works."

Finally, the Advocate General takes the view that while the directive "does not allow the users of dedicated terminals to save the works [ . . . ] on a USB stick," the printing of the work "may be covered by other exceptions provided for by the directive, in particular, the exception for private copying."

The opinion of the Advocate General is not binding on the ECJ but will strongly influence its final decision. The full text of the opinion is available here.