Article 5 of the EU Copyright Directive 2001/29 (the “Directive”) contains an exhaustive list of exceptions and limitations to the right holders’ rights of reproduction and communication to the public. However, these exceptions and limitations may only be applied to certain special cases that do not conflict with a normal exploitation of the work and that do not unreasonably prejudice the legitimate interests of the right holder.

Pursuant to Article 5(3) of the Directive, Member States may provide for an exception if the acts of reproduction and/or communication are uses made by publicly accessible libraries, educational establishments, museums, or archives, and those uses concern works that are contained in these institutions’ collection. Also, these acts of reproduction and/ or communication should have been communicated or made available, for the purpose of research or private study, to individual members of the public through dedicated terminals on these institutions’ premises—on condition that such works are not subject to purchase or licensing terms.

In the case that was referred to the European Court of Justice (the “ECJ”) for a preliminary ruling, an academic library in Germany installed electronic reading points that allow the public to consult works from the library’s collection. This library did not accept a publishing house’s offer to the library to purchase and use electronic versions of its textbooks. Instead, the library digitized one of the textbooks it had in its collection to make it available to users on its electronic reading points on its premises. Users of those reading points could print out the work on paper or store it on a USB stick, in part or in full, and take it out of the library in that form.

In its ruling of that case on 11 September 2014, the ECJ held that the requirement for benefiting from such exception whereby the works in question may not be subject to purchase or licensing terms does not encompass the mere act of offering to conclude a licensing agreement. In other words, there must be an existing licensing agreement for the work in question that sets out the conditions under which the library may use that work. Also, the ECJ ruled that the Directive does not prevent Member States from granting libraries the right to digitize the books from their collections if it becomes necessary, for the purpose of research or private study, to make those works available to individuals through dedicated terminals. The right of libraries to communicate, through 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 digitize the works in question.

However, the Court held that the above exception does not extend to acts such as the printing out of works on paper or their storage on a USB stick carried out by users from those dedicated terminals since such acts of reproduction, unlike some operations involving the digitization of a work, are not necessary for the purpose of making the work available to the users of that work. That being said, such acts of reproduction may, if appropriate, be authorized under national legislation transposing exceptions or limitations to the exclusive right of reproduction set forth in Article 5(2) of the Directive, such as the reproduction on any medium by a natural person for private use if, in any event, the right holders receive fair compensation for those acts of reproduction.

The case (C-117/13) can be found on