Opinion of the Advocate General — ECLI:EU:C:2014:1795
Date: 2014-06-05
Language of the case: German
Subject matter: Right of establishment;Intellectual, industrial and commercial property;Approximation of laws;Freedom to provide services;Copyright and related rights
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary — Judgment of the Court (Fourth Chamber), 11 September 2014 1. Approximation of laws — Copyright and related rights — Directive 2001/29 — Harmonisation of certain aspects of copyright and related rights in the information society — Right of reproduction, right of communication to the public of works and right of making available to the public other subject-matter — Exceptions and limitations — Use for the purpose of research or private study of works and other subject-matter — Book made available to individual members of the public by dedicated terminals in publicly accessible libraries — Work not subject to purchase or licensing terms — Meaning (European Parliament and Council Directive 2001/29, Art. 5(3)(n)) 2. Approximation of laws — Copyright and related rights – Directive 2001/29 – Harmonisation of certain aspects of copyright and related rights in the information society — Right of reproduction, right of communication to the public of works and right of making available to the public other subject-matter — Exceptions and limitations — Right of a library to digitise a work contained in its collection in order to make it available to users by dedicated terminals — Included — Conditions (European Parliament and Council Directive 2001/29, Arts 5(2)(c), 3(n), and (5) 3. Approximation of laws — Copyright and related rights – Directive 2001/29 – Harmonisation of certain aspects of copyright and related rights in the information society — Reproduction right — Exceptions and limitations — Making the work available by dedicated terminals which permit it to be printed out on paper or to be stored on a USB stick — Not included (European Parliament and Council Directive 2001/29, Art. 5(2)(a) and (b) and 3(n)) 1. The concept of ‘purchase or licensing terms’ provided for in Article 5(3)(n) of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society must be understood as requiring that the rightholder and an establishment, such as a publicly accessible library, referred to in that provision must have concluded a licensing agreement in respect of the work in question that sets out the conditions in which that establishment may use that work. First, an interpretation to the contrary implies that the rightholder could, by means of a unilateral and essentially discretionary action, deny the establishment concerned the right to benefit from that limitation and thereby prevent it from realising its core mission and promoting the public interest in promoting research and private study, through the dissemination of knowledge. Secondly, in the context of the exceptions and limitations listed in Article 5(3) of Directive 2001/29, reference is made to existing contractual relations and the conclusion and implementation of existing contractual agreements, and not mere prospects of contracts or licences. If the mere offer to conclude a licensing agreement were sufficient to rule out the application of Article 5(3)(n) of Directive 2001/29, such an interpretation would be liable to negate much of the substance of the limitation provided for in that provision, or indeed its effectiveness, since, were it to be accepted, that limitation would apply only to the increasingly rare works of which an electronic version, primarily in the form of an e-book, is not yet offered on the market. (see paras 27, 28, 30, 32, 35, operative part 1) 2. Article 5(3)(n) of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society, read in conjunction with Article 5(2)(c) thereof, must be interpreted as not precluding Member States from granting to publicly accessible libraries covered by those provisions the right to digitise the works contained in their collections, if such act of reproduction is necessary for the purpose of making those works available to users, by means of dedicated terminals, within those establishments. That right of communication would risk being rendered largely meaningless, or indeed ineffective, if establishments such as publicly accessible libraries did not have an ancillary right to digitise the works in question. Moreover, those establishments are recognised as having such a right pursuant to Article 5(2)(c) of Directive 2001/29, provided that specific acts of reproduction are involved. That condition is, in principle, observed where the digitisation of some of the works of a collection is necessary for the purpose of the ‘use by communication or making available, for the purpose of research or private study, to individual members of the public by dedicated terminals’, as provided in Article 5(3)(n) of Directive 2001/29. Furthermore, the scope of that ancillary right of digitisation must be determined by interpreting Article 5(2)(c) of Directive 2001/29 in the light of Article 5(5) thereof, pursuant to which that limitation is applicable only in certain special cases which do not prejudice the normal exploitation of the work or other protected object or cause unjustified harm to the legitimate interests of the rightholder. Article 5(5) however, is not intended to extend the scope of the exceptions and limitations provided for in Article 5(2) of the directive. (see paras 43, 44, 46, 47, 49, operative part 2) 3. Article 5(3)(n) of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as not extending to acts such as the printing out of works on paper or their storage on a USB stick, carried out by users from dedicated terminals installed in publicly accessible libraries covered by that provision. However, such acts may, if appropriate, be authorised under national legislation transposing the exceptions or limitations provided for in Article 5(2)(a) or (b) of that directive, provided that, in each individual case, the conditions laid down by those provisions are met. Those acts of reproduction, unlike some operations involving the digitisation of a work, also cannot be permitted under an ancillary right stemming from the combined provisions of Articles 5(2)(c) and 5(3)(n) of Directive 2001/29, since they are not necessary for the purpose of making the work available to the users of that work, by dedicated terminals, in accordance with the conditions laid down by those provisions. (see paras 54, 57, operative part 3)