The Court of Justice of the European Union gave its judgment in the case of the Technical University of Darmstadt and Eugen Ulmer on 11^th September 2014. The case concerns the exception in the EU Copyright Directive which allows copyright works to be made available on “dedicated terminals” by libraries. This is topical in the UK because the dedicated terminals exception (DTE) was introduced as Section 40B of the Copyright, Patents and Designs Act 1988 in June.

The publisher Eugen Ulmer KG is taking legal action against the University, which has chosen to make use of the DTE in order to digitise and make available a recent history textbook published by Ulmer. In various respects this is a test case. The Court has answered the questions raised by the German court in a way which is similar to the view of the Advocate General’s Opinion (Blog post 2^nd September 2014):

• The fact that the publisher has offered a licence for the e-book version of the work does not mean that the University is subject to purchase or licensing terms, which would prevent it making the book available.
• Member states may allow libraries to digitise works in order to make them available via dedicated terminals.
• The DTE does not permit copying of the work by library users either in terms of printing or digital copies. It is simply an exception to the restriction on Communicating to the Public. However other exceptions may allow copying as long as the relevant conditions are met.

The case brings out interesting differences between UK and German copyright legislation, such as the condition under the German version of the DTE that the number of digital “copies” made available cannot exceed the number of paper copies purchased. There is also an emphasis of the concept of “adequate remuneration” for rights owners in the judgment – presumably provided via the German system of levies on copying equipment, which has no equivalent in the UK. At the moment we cannot be sure of the relevance the CJEU judgment has for UK libraries.

The Intellectual Property Office (IPO) has just published its Guidance and Checklists tackling the question, what does a diligent search look like? This is in preparation for new Regulations introducing an Orphan Works Licensing Scheme to be run by the IPO, due to be introduced on 29th October 2014.

The new scheme will enable people to apply for a licence to use an Orphan Work for a specific purpose, which may be commercial, such as an advertising campaign or completely non commercial. The IPO has previously undertaken to have variable pricing depending on the exact use being made of the work. This should make the scheme affordable for non commercial projects. In principle any type of copyright work in any medium could be included

On the face of it, the IPO takes any legal risk from newly emerging rights owners on its own shoulders when it issues a licence. Quite understandably the IPO want to be sure that efforts to locate copyright owners have been sufficiently exhaustive. Hence the new Guidelines set out in detail the kind of checks which would be appropriate for Films and Sound, Literary Works and Visual Art. The information in the new Guidance is very useful, but when it comes down to it, each Orphan Work which we might want to use will be slightly different, so it is difficult to generalise about requirements.

The IPO’s response to real life examples of requests for reuse will be the proof of the pudding and it will be interesting to see how much flexibility will be exercise with respect to what is already known about the work and the range of sources which it is reasonable to investigate. In any case the new scheme should be welcomed as a real step forward in addressing the problems posed by Orphan Works.

Regulations permitting Extended Collective Licensing (ECL) are set to become law on 1^st October. ECL is seen as a solution to the problem of gaining copyright permission for mass digitization projects, through which, for example, a library hopes to digitise a significant collection in order to make it more readily available via a web site. A proportion of the collection is known to be still in copyright and the process of item by item rights clearance can be prohibitively expensive and time consuming. Rights owners are sometimes unresponsive.

The ECL solution enables collecting societies (such as the Copyright Licensing Agency) to apply to the Government to run an ECL scheme which enables them to licence the use of works, the copyright in which belongs to non members of the collecting society. The collecting society must have a well established presence in licensing the relevant type of copyright material in order to qualify.

The scheme, if approved, will enable the library to pay a licence fee to cover its digitisation of a large number of works. The rights owners affected would be able to benefit from fees distributed by the collecting society (just as the members benefit currently). They would also be able to take their works out of the scheme if they objected.

The licences which can be applied for under scheme seem to be of limited duration, which is likely to be problematic for libraries investing in large scale digitisation. It remains to be seen, also, how promptly collecting societies will come forward to take advantage of the new arrangements.

Among the changes introduced on 1^st June 2014 was the Exception permitting libraries and archives to make digitised versions of published works available to the public via dedicated terminals. This has been viewed by the Intellectual Property Office as a practical means of making older, fragile material available.

In  German higher education the equivalent exception seems to be given a much wider interpretation and this is being tested by a case before the Court of Justice of the European Union (C117/13).

The Technical University of Darmstadt has chosen to use the exception, which has been available in German law for some time, to justify digitising the full text of recently published text books in order to make them available on dedicated terminals.

This has been challenged by a publisher, Eugen Ulmer, using a specific work as a test case. The German Federal Court has referred a number of questions to the Court of Justice of the European Union (CJEU).

The Advocate General in his Opinion (which is preliminary and not always followed by the Court) has stated:

• The University may digitise the work in order to make it available.
• The publisher’s offer of a licence to use an e-book version makes no difference.
• The exception does not include permission for users to copy the work, although that may follow from other exceptions – probably not stretching to digital copies.

The Court’s judgment is due on 11^th September and should prove very interesting as the interpretation of this exception seems so different to that assumed in the UK.