Among the changes introduced on 1st 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 11th September and should prove very interesting as the interpretation of this exception seems so different to that assumed in the UK.