Darmstadt Revisited

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.