September 15, 2014

German technical university defies German textbook publisher in a case with a surprising amount of drama

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The book that started it all. Image via Rebuy.de.

The book that started it all. Image via Rebuy.de.

In a case that echoes Google’s unauthorized scanning of millions of copyrighted works, the European Union Court of Justice has ruled that libraries in EU member states may digitize books in their collections and make them available to patrons without the copyright holder’s permission.

The issue arose when a German university, the Technical University of Darmstadt, refused to buy an e-book edition of the textbook Einführung in die neuere Geschichte (Introduction to Modern History) published by German publishing house Eugen Ulmer Verlag and instead scanned their hard copy for use by students in the library.

Ulmer then sued the Technical University of Darmstadt (whose notable alumni include typeface designer Hermann Zapf and builder of a rocket-powered motorcycle Fritz van Opel), but the regional court upheld the university’s right to digitize materials, and the case went to the higher court.

At issue were a couple of different types of uses: Darmstadt, with consummate cheekiness, was not only allowing students to access the book at specific “electronic reading points” in the library, but also to print it out or save it on a USB drive, all without seeking permission from or paying Ulmer and Schulze. The Court of Justice ruled that these methods of reproducing a copyrighted work could be authorized by national governments, but that a “fair compensation” must be paid to the rightsholder.

But digitizing a book for use in the library is a different story. The EU copyright directive, which guides EU copyright law, contains an exception that put Darmstadt in the clear. From PC World:

The directive does not prevent EU 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 CJEU ruled.

“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 digitize the works in question,” the court said.

All this could seem awfully dusty—directives, one-volume introductions to modern history, electronic reading points (surely the most unappealing-sounding name for a place to read even multi-volume introductions to modern history with all the weird trivia included).

What’s notable about this case, though — even with its limits on where the material can accessed — is that it gives libraries legal backing for creating their own electronic editions even when an e-book edition is available — in other words, library digitization not as a preservation tactic for rare or fragile print materials, which is how it’s most frequently discussed, but digitization as active resistance against purchasing the same material in two different formats. It’s a ruling that EU libraries have welcomed, but that publishers might understandably want to greet with a whole bunch of Zapf dingbats.

 

Sal Robinson is a former Melville House editor. She's also the co-founder of the Bridge Series, a reading series focused on translation.

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