Technische Universität (TU) Darmstadt digitized a book from German publisher Eugen Ulmer KG without receiving permission in order to post sections of it for course reading. Eugen Ulmer filed suit, and on Sept. 11, the European Court of Justice (ECJ) ruled that libraries, “for the purpose of research or private study,” can digitize works as a legitimate fair use exemption to European Union (EU) copyright law, with some specific limitations. This decision is the most recent effort by the EU to translate existing law and common practices into the evolving realities of 21st-century technology and society.
In May 2014, the ECJ ruled that search engines have a responsibility to remove personal information from their results on request. According to a blog post by Giancarlo Frosio on Stanford Law School’s Center for Internet and Society site, the decision “redefines the digital conundrum at the intersection of data protection law, freedom of expression and intermediary liability by further expanding liabilities of intermediaries. The case will affect privacy/reputation-motivated takedown requests directed towards intermediaries.”
In another interesting decision, the ECJ—following the lead of Luxembourg and France—ruled that, as with print books, individual EU member countries can charge lower value-added tax (VAT) rates on ebooks. Since ebooks weren’t mentioned in the original legislation, the court decided to clarify this option for ebooks to allow for greater flexibility in meeting market needs. A post on The Digital Reader notes that starting in 2015, VAT will be based on where the buyer resides, not the retailer, and so “there was no reason that EU member nations can’t collect different amounts of VAT” on print versus digital books. Some see this as good news, allowing retailers to adjust pricing to local markets; others see this as a way to keep ebook prices higher in European countries than elsewhere.
Libraries and the Right to Digitize Books
Throughout the world, various countries have established copyright laws to protect authors’ and publishers’ rights. Despite these laws, digital technologies have changed the ways information and works are presented, sold, and made available for customer use. In the U.S., copyright laws allow for fair use, creating a balance between protecting the rights of authors and publishers with the rights of readers and allowing libraries to make these materials available for use. In a law review, Rachel Ann Geist writes, “[A]s e-books grow in popularity, the threat of piracy grows alongside them. Thousands of people search for pirated books online every day, and more are likely to follow, as e-books become the norm rather than the exception. To displace this threat, publishers convinced Congress to abandon the first sale doctrine in favor of a market theory that allowed publishers to license, rather than sell, their copyrighted works.”
She notes that 10 years later, “Congress’s decision has not only failed to ensure publishers’ continued role as gatekeepers of literary content, but also stripped libraries of their ability to operate effectively in the digital age. As Congress sits back and watches, and the Supreme Court turns its back, libraries—the antithesis of a market entity—are at the mercy of market forces they can neither compete with nor control. Congressional action is needed to preserve the application of the first sale doctrine to publisher-library transactions and to guarantee the preservation of unfettered public access in the digital age.” This we have yet to see; however, there has been some important case law in recent years.
In 2005, the Authors Guild famously sued Google over its Google Book Search feature, claiming violations to copyright’s fair use clauses. A proposed settlement was rejected in 2011, and the Authors Guild has since filed with the 2nd Circuit Court of Appeals. Within months, the Authors Guild filed suit against HathiTrust, the multilibrary partnership that works to provide “long-term preservation and access services for public domain and in copyright content from a variety of sources, including Google, the Internet Archive, Microsoft, and in-house partner institution initiatives.”
The court upheld HathiTrust’s right to maintain its database of full-text book information, stating that “the creation of a full-text searchable database is a quintessentially transformative use.” The court also approved HathiTrust’s service to make texts accessible to print-disabled people. According to the Electronic Frontier Foundation, “Finally, the court remanded the case to the district court regarding the long-term preservation of books.” This lawsuit is a clear victory for the role and nature of library work in our society.
The EU Grants Libraries Even Wider Leverage to Digitize Books
The TU Darmstadt v. Eugen Ulmer decision grants European libraries the right to digitize books and make them available at “electronic reading points” in their libraries without needing any permission from publishers or copyright holders. The digitizing done at TU Darmstadt was only accessible to users from certain workstations in its library. Eugen Ulmer asserted that the library should have licensed ebook versions of the publisher’s textbooks, filing suit to prevent the digitization and to forbid users from being able to print or download the book or portions of the book.
The ECJ held that an EU “Member State may authorise libraries to digitise, without the consent of the rightholders, books they hold in their collection so as to make them available at electronic reading points.” The decision cites the EU’s copyright directive, which states that “authors have the exclusive right to authorise or to prohibit the reproduction and the communication to the public of their works. However, the directive allows Member States to provide for specific exceptions or limitations to that right. This option exists notably for publically accessible libraries which, for the purpose of research or private study, make works from their collections available to users by dedicated terminals.
“Even if the rightholder offers to a library the possibility of concluding licencing agreements for the use of his works on appropriate terms,” the decision continues, “the library may avail itself of the exception 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. Next, 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.” However, the court made it clear that libraries cannot allow users to either print out or download digitized books. This, the court ruled, would be in effect making a copy of the work, which remains illegal.
The EU is establishing a strong set of exceptions to cover noncommercial research use (such as data mining), educational use (including in libraries), and personal copies and that will adapt to new, 21st-century publishing realities.
Impacts on Copyright Law and Library Practice
“I don’t think it’s entirely inconceivable that a court could do something similar here under the Fair Use doctrine,” University of Minnesota law professor Thomas Cotter explains, “but it would go beyond, say, the result in the Author’s Guild v. Google case, where Judge Chen concluded that making digital copies for the purpose of making snippets available was OK. One thing a U.S. court couldn’t easily do, absent enabling legislation, would be to allow the copying subject to an obligation to pay equitable remuneration. Fair Use is pretty much an all-or-nothing proposition (Fair Use = no royalty, no Fair Use = infringement). A court could allow a use and refuse to enjoin it on condition the defendant pay an ongoing royalty, but that would be a case-by-case matter, not a generally applicable rule.
“Section 108 of the U.S. copyright act allows libraries to make limited numbers of copies only subject to certain stringent conditions,” Cotter continues, “so any interpretation of the U.S. Fair Use doctrine that went beyond that might well be critiqued as going too far. On balance, it’s probably very unlikely a U.S. court would interpret the Fair Use doctrine in a manner akin to what was permitted in the European case.”
Dana Robinson, a founding partner of TechLaw, LLP, notes that the court was “trying to reconcile something that is really difficult in the world of ebooks. The library was traditionally a way to encourage literacy and access to knowledge by those who could not afford books. A library could buy one or more copies of a book and then let people check those copies out for long enough to read them and then return them. The author/publisher would lose some sales in the process, because dozens of people could read one book over the course of time. But, libraries also became their own source of additional revenue for publishers and authors. Even though the per-reader income would be less, a sale to libraries is a good income source for publishers and authors. In addition, a popular book might prompt a library to buy multiple copies.”