Libraries can digitize books without consent, says top EU court advisor

But copying an electronic book to a USB stick is illegal, the Advocate General said

European libraries are allowed to digitize books without the consent of the rights holder, the senior advisor to Europe's top court said Thursday.

The European Copyright Directive does not prevent the digitization of books in a library's collection if those books are made accessible to the public on dedicated terminals, wrote Advocate General Niilo Jääskinen in a formal opinion to the Court of Justice of the European Union (CJEU).

Under the directive, member states must grant authors the exclusive right to authorize or prohibit the reproduction of public works. But there are specific exceptions that apply to libraries which are allowed to make books public for the purpose of research or private study, he said.

Digitization of library books may be necessary to protect original works that are still copyrighted but are too old, fragile or rare to make available to a large number of students or when photocopying might result in disproportionate wear, Jääskinen wrote. The directive only permits libraries to digitize individual works though, and does not permit the digitization of an entire collection, he said.

Users are not allowed to save the digital book to a USB stick, since that isn't a communication by the library but the creation of a private digital copy by the user, Jääskinen said. However, the directive in principle does not prevent the book from being printed as a private copy, he added.

There is no difference in photocopying a book that is physically present in a library and printing a digital copy of the same book, he said. The risk of unlawful distribution on a large scale which is present with digital copies does not exist in the case of printed paper copies, he said.

The Advocate General gave his opinion in a case that was referred to the CJEU by Germany's Federal Court of Justice. The Germans asked Europe's top court to clarify the precise implications of Europe's Copyright Directive in a dispute between the Technical University of Darmstadt and the German publishing house Eugen Ulmer.

The university digitized one of the publisher's textbooks and made it available to students on a terminal while refusing to purchase the e-book version of the book. Eugen Ulmer asked the court to forbid the digitization of the book and prevent students from reading it on a terminal, printing it or saving it on a USB stick.

Jääskinen however is of the opinion that even when a rights holder offers the library a license agreement for e-books, the library can still show a self-made digital copy on dedicated terminals.

While the Advocate General's opinion is not binding on the Court of Justice, the court ruling usually follows his independent advice. This is not always the case though. Last month for example the CJEU ruled that a person has the right to request that search engines remove personal information from search results, a ruling that contradicted the Advocate General's opinion that there was no universal right to be forgotten.

The Judges of the Court are now beginning their deliberations in this case. Judgment will be given at a later yet unspecified date.

Loek is Amsterdam Correspondent and covers online privacy, intellectual property, open-source and online payment issues for the IDG News Service. Follow him on Twitter at @loekessers or email tips and comments to loek_essers@idg.com

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