1. This request for a preliminary ruling concerns the interpretation of Article 5(3)(n) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10).
2. The request was made in proceedings between the Technical University of Darmstadt (Technische Universität Darmstadt, ‘TU Darmstadt’) and Eugen Ulmer KG (‘Ulmer’), concerning TU Darmstadt’s making available to the public, by terminals installed within a library, of a book contained in its collection, the user rights to which are held by Ulmer. Legal context European Union law
3. Recitals 31, 34, 36, 40, 44, 45 and 51 in the preamble to Directive 2001/29 are worded as follows: ‘(31)\tA fair balance of rights and interests between the different categories of rightholders, as well as between the different categories of rightholders and users of protected subject-matter must be safeguarded. … … (34) Member States should be given the option of providing for certain exceptions or limitations for cases such as educational and scientific purposes, for the benefit of public institutions such as libraries and archives, for purposes of news reporting, for quotations, for use by people with disabilities, for public security uses and for uses in administrative and judicial proceedings. … (36) The Member States may provide for fair compensation for rightholders also when applying the optional provisions on exceptions or limitations which do not require such compensation. … (40) Member States may provide for an exception or limitation for the benefit of certain non-profit making establishments, such as publicly accessible libraries and equivalent institutions, as well as archives. However, this should be limited to certain special cases covered by the reproduction right. … Therefore, specific contracts or licences should be promoted which, without creating imbalances, favour such establishments and the disseminative purposes they serve. … (44) When applying the exceptions and limitations provided for in this Directive, they should be exercised in accordance with international obligations. Such exceptions and limitations may not be applied in a way which prejudices the legitimate interests of the rightholder or which conflicts with the normal exploitation of his work or other subject-matter. … (45) The exceptions and limitations referred to in Article 5(2), (3) and (4) should not, however, prevent the definition of contractual relations designed to ensure fair compensation for the rightholders insofar as permitted by national law. … (51) … Member States should promote voluntary measures taken by rightholders, including the conclusion and implementation of agreements between rightholders and other parties concerned, to accommodate achieving the objectives of certain exceptions or limitations provided for in national law in accordance with this Directive. …’
4. Article 2 of that directive, entitled ‘Reproduction right’, provides: ‘Member States shall provide for the exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part: (a) for authors, of their works; …’
5. Article 3 of the same directive, entitled ‘Right of communication to the public of works and right of making available to the public other subject-matter’, provides in paragraph 1: ‘Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.’
6. Article 5 of the same directive, entitled ‘Exceptions and limitations’, provides in paragraph 2: ‘Member States may provide for exceptions or limitations to the reproduction right provided for in Article 2 in the following cases: (a) in respect of reproductions on paper or any similar medium, effected by the use of any kind of photographic technique or by some other process having similar effects, with the exception of sheet music, provided that the rightholders receive fair compensation; (b) in respect of reproductions on any medium made by a natural person for private use and for ends that are neither directly nor indirectly commercial, on condition that the rightholders receive fair compensation which takes account of the application or non-application of technological measures referred to in Article 6 to the work or subject-matter concerned; (c) in respect of specific acts of reproduction made by publicly accessible libraries, educational establishments or museums, or by archives, which are not for direct or indirect economic or commercial advantage; …’
7. Article 5(3) of that directive provides: ‘Member States may provide for exceptions or limitations to the rights provided for in Articles 2 and 3 in the following cases: … (n) use by communication or making available, for the purpose of research or private study, to individual members of the public by dedicated terminals on the premises of establishments referred to in paragraph 2(c) of works and other subject-matter not subject to purchase or licensing terms which are contained in their collections; …’
8. According to Article 5(5) of the same directive: ‘The exceptions and limitations provided for in paragraphs 1, 2, 3 and 4 shall only be applied in certain special cases which do not conflict with a normal exploitation of the work or other subject-matter and do not unreasonably prejudice the legitimate interests of the rightholder.’ German law
9. Paragraph 52b of the German Law on copyright (Urheberrechtsgesetz, ‘UrhG’) of 9 September 1965 (BGBl. I, p. 1273), in the version applicable at the date of the facts in the main proceedings, is worded as follows: ‘Reproduction of works at electronic reading points in public libraries, museums and archives So far as there are no contractual provisions to the contrary, it shall be permissible to make published works available from the holdings of publicly accessible libraries, museums or archives, which neither directly nor indirectly serve economic or commercial purposes, exclusively on the premises of the relevant establishment at electronic reading points dedicated to the purpose of research and for private study. The number of copies of a work made available at electronic reading points shall not, in principle, be higher than the number held by the establishment. Equitable remuneration shall be paid in consideration of their being made available. The claim may be asserted only by a collecting society.’ The dispute in the main proceedings and the questions referred for a preliminary ruling
10. TU Darmstadt operates a regional and academic library in which it installed electronic reading points that allow the public to consult works contained in the collection of that library.
11. Since January or February 2009, those works have included the textbook of Schulze W., Einführung in die neuere Geschichte (‘the textbook at issue’), published by Ulmer, a scientific publishing house established in Stuttgart (Germany).
12. TU Darmstadt did not take up Ulmer’s offer of 29 January 2009 of an opportunity to purchase and use the textbooks it publishes as electronic books (‘e-books’), including the textbook at issue.
13. TU Darmstadt digitised that textbook so as to make it available to users on electronic reading points installed in its library. Those points did not allow for a greater number of copies of that work to be consulted at any one time than the number owned by the library. Users of the reading points could print out the work on paper or store it on a USB stick, in part or in full, and take it out of the library in that form.
14. In an action brought by Ulmer, the Landgericht (Regional Court) Frankfurt am Main held, by judgment of 6 March 2011, that the rightholder and establishment must have reached prior agreement on the digital use of the work concerned for Paragraph 52b of the UrhG not to apply. That court also rejected Ulmer’s application seeking to prohibit TU Darmstadt from digitising the textbook at issue or having it digitised. However, it granted that company’s request to prohibit users of the TU Darmstadt library from being able, at electronic reading points installed therein, to print out that work and/or store it on a USB stick and/or take such reproductions out of the library.
15. Hearing an appeal by TU Darmstadt on a point of law, the Bundesgerichtshof (Federal Court of Justice) considers, in the first place, that the question arises whether works and other protected objects are ‘subject to purchase or licensing terms’, within the meaning of Article 5(3)(n) of Directive 2001/29, where the rightholder offers to conclude with an establishment referred to in that provision appropriately worded licensing agreements in respect of those works or whether a different interpretation of that provision must be adopted, in terms of which only cases where the owner and the establishment have entered into an agreement on that matter are covered.
16. That court takes the view that, unlike the German language version of the provision, the English and French language versions are consistent with the first of the above interpretations. That interpretation could also be justified on the basis of the purpose and general scheme of Directive 2001/29. However, if only the entering into an agreement would allow for the application of that provision to be ruled out, it would be open to the establishment to refuse an appropriate offer from the rightholder so as to benefit from the limiting provision in question, which would also mean that the owner would not receive appropriate remuneration, which nevertheless is one of the objectives of that directive.
17. In the second place, the referring court is uncertain whether Article 5(3)(n) of Directive 2001/29 must be interpreted to mean that it allows Member States to confer on the establishments referred to in that provision the right to digitise the works contained in their collections to the extent that the communication or making available of those works on their terminals requires such reproduction. The referring court takes the view that Member States should have an ancillary competence in order to provide for such an exception to the reproduction right referred to in Article 2 of that directive or such a limitation of that right; otherwise the effectiveness of Article 5(3)(n) would not be guaranteed. That competence could, in any event, be inferred from Article 5(2)(c) of the directive.
18. In the third place, the referring court takes the view that the dispute in the main proceedings raises the question whether, pursuant to Article 5(3)(n) of Directive 2001/29, Member States may provide for a limiting provision permitting the users of an establishment referred to in that provision to print out on paper or store on a USB stick, in part or in full, the works reproduced or made available by the establishment on its terminals.
19. In that regard, that court considers, first of all, that while those printouts, stored copies or downloads, being related to the reproduction of a work, are not, in principle, covered by the limitation provided for in Article 5(3)(n) of Directive 2001/29, they could nevertheless be permitted, as an extension of the communication or of the making available of a work by the establishment in question, under another limitation, in particular, pursuant to the so-called ‘private copying’ exception provided for in Article 5(2)(b) of that directive.
20. Next, the court finds that the objective referred to in Article 5(3)(n) of Directive 2001/29, which entails permitting the efficient use, for the purpose of research or private study, of texts communicated or made available on the terminals of an establishment such as a library, is consistent with an interpretation of that provision to the effect that the printing out on paper of a work from a terminal should be permitted, whereas storage on a USB stick should not be.
21. Lastly, the referring court considers that such an interpretation of Article 5(3)(n) of Directive 2001/29 would also ensure that the scope of the limitation provided for in that provision respects the threefold condition provided for in Article 5(5) of that directive. In its view, storage of a work on a USB stick encroaches upon the rights of the author of that work more than printing it out on paper.
22. In those circumstances, the Bundesgerichtshof decided to stay the proceedings and refer the following questions to the Court for a preliminary ruling: ‘(1) Is a work subject to purchase or licensing terms, within the meaning of Article 5(3)(n) of Directive 2001/29, where the rightholder offers to conclude with the establishments referred to therein licensing agreements for the use of that work on appropriate terms? (2) Does Article 5(3)(n) of Directive 2001/29 entitle the Member States to confer on those establishments the right to digitise the works contained in their collections, if that is necessary in order to make those works available on terminals? (3) May the rights which the Member States lay down pursuant to Article 5(3)(n) of Directive 2001/29 go so far as to enable users of the terminals to print out on paper or store on a USB stick the works made available there?’ Consideration of the questions referred for a preliminary ruling The first question
23. By its first question, the referring court is essentially asking whether a work is subject to ‘purchase or licensing terms’, within the meaning of Article 5(3)(n) of Directive 2001/29, where the rightholder has offered to conclude with an establishment referred to in that provision, such as a publicly accessible library, on appropriately worded terms a licensing agreement in respect of that work.
24. All of the interested parties that have presented written observations, with the exception of Ulmer, propose that the first question be answered in the negative and essentially support an interpretation to the effect that the concept of ‘purchase or licensing terms’, mentioned in Article 5(3)(n) of Directive 2001/29, must be understood to mean that the rightholder and establishment concerned must have concluded a licensing agreement in respect of the work in question that sets out the conditions in which that establishment may use the work.
25. Ulmer argues that the mere fact that the rightholder offers to conclude a licensing agreement with a publicly accessible library is sufficient for ruling out the application of Article 5(3)(n) of Directive 2001/29, provided always that such offer is ‘appropriate’.
26. In that regard, first of all, a comparison of the language versions of Article 5(3)(n) of Directive 2001/29, particularly the English, French, German and Spanish versions - which use the words ‘terms’, ‘conditions’, ‘Regelung’ and ‘condiciones’, respectively - shows that, in that provision, the EU legislature used the concepts ‘terms’ or ‘provisions’, which refer to contractual terms actually agreed as opposed to mere contractual offers.
27. Next, it should be recalled that the limitation under Article 5(3)(n) of Directive 2001/29 aims to promote the public interest in promoting research and private study, through the dissemination of knowledge, which constitutes, moreover, the core mission of publicly accessible libraries.
28. The interpretation favoured by Ulmer 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.
29. Moreover, recital 40 in the preamble to Directive 2001/29 states that specific contracts or licences should be promoted which, without creating imbalances, favour such establishments and the disseminative purposes they serve.
30. As noted by the Advocate General in points 21 and 22 of his Opinion, recitals 45 and 51 in the preamble to Directive 2001/29 confirm (including in their German version) that, in the context, inter alia, of the exceptions and limitations listed in Article 5(3) of Directive 2001/29, it is existing contractual relations and the conclusion and implementation of existing contractual agreements that are at issue, and not mere prospects of contracts or licences.
31. Furthermore, the interpretation proposed by Ulmer is difficult to reconcile with the aim pursued by Article 5(3)(n) of Directive 2001/29, which is to maintain a fair balance between the rights and interests of rightholders, on the one hand, and, on the other hand, users of protected works who wish to communicate them to the public for the purpose of research or private study undertaken by individual members of the public.
32. In addition, if the mere act of offering 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, the limitation would apply, as Ulmer has maintained, only to those increasingly rare works of which an electronic version, primarily in the form of an e-book, is not yet offered on the market.
33. Lastly, the interpretation to the effect that there must be contractual terms actually agreed also cannot be ruled out - contrary to what is maintained by Ulmer - by reason of the fact that it would conflict with the threefold condition provided for in Article 5(5) of Directive 2001/29.
34. In that regard, it is sufficient to state that the limitation provided for in Article 5(3)(n) of Directive 2001/29 is accompanied by a number of restrictions that guarantee - even though the application of that provision is ruled out only in the event that contractual terms have actually been concluded - the continuing applicability of such a limitation in special cases which do not conflict with a normal exploitation of the works and do not unreasonably prejudice the legitimate interests of the rightholder.
35. In the light of the foregoing considerations, the answer to the first question is that the concept of ‘purchase or licensing terms’ provided for in Article 5(3)(n) of Directive 2001/29 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. The second question
36. By its second question, the referring court is essentially asking whether Article 5(3)(n) of Directive 2001/29 must be interpreted to mean that it precludes Member States from granting to publicly accessible libraries covered by that provision 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.
37. The first point to be noted is that the digitisation of a work, which essentially involves the conversion of the work from an analogue format into a digital one, constitutes an act of reproduction of the work.
38. The question therefore arises whether Article 5(3)(n) of Directive 2001/29 permits Member States to grant that reproduction right to publicly accessible libraries, since, under Article 2 of that directive, it is the authors that have the exclusive right to authorise or prohibit the reproduction of their works.
39. In that regard, it should first be stated that, according to the first sentence of Article 5(3) of Directive 2001/29, the exceptions and limitations set out in that paragraph relate to the rights provided for in Articles 2 and 3 of that directive and thus both the exclusive reproduction right enjoyed by the rightholder and the right of communication to the public of works.
40. However, Article 5(3)(n) of the directive limits the use of works, within the meaning of that provision, to the ‘communication or making available’ of those works and thus to acts which fall under the sole exclusive right of communication to the public of works referred to in Article 3 of that directive.
41. Next, it should be recalled that for there to be an ‘act of communication’ for the purposes of Article 3(1) of Directive 2001/29, it is sufficient, in particular, that those works are made available to a public in such a way that the persons forming that public may access them, irrespective of whether they avail themselves of that opportunity (judgment in Svensson and Others , C‑466/12, EU:C:2014:76, paragraph 19).
42. It follows that, in circumstances such as those of the case in the main proceedings, where an establishment, such as a publicly accessible library, which falls within Article 5(3)(n) of Directive 2001/29, gives access to a work contained in its collection to a ‘public’, namely all of the individual members of the public using the dedicated terminals installed on its premises for the purpose of research or private study, that must be considered to be ‘making [that work] available’ and, therefore, an ‘act of communication’ for the purposes of Article 3(1) of that directive (see, to that effect, judgment in Svensson and Others , EU:C:2014:76, paragraph 20).
43. Such a right of communication of works enjoyed by establishments such as publicly accessible libraries covered by Article 5(3)(n) of Directive 2001/29, within the limits of the conditions provided for by that provision, would risk being rendered largely meaningless, or indeed ineffective, if those establishments did not have an ancillary right to digitise the works in question.
44. 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.
45. That condition of specificity must be understood as meaning that, as a general rule, the establishments in question may not digitise their entire collections.
46. However, 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.
47. 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) of that directive, under 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, the latter provision, however, not being intended to extend the scope of the exceptions and limitations provided for in Article 5(2) of the directive (see, to that effect, judgments in Infopaq International , C‑5/08, EU:C:2009:465, paragraph 58, and ACI Adam and Others , C‑435/12, EU:C:2014:254, paragraph 26).
48. In the present case, it must be stated that the applicable national legislation takes due account of the conditions provided for in Article 5(5) of the directive, since it follows, first, from Article 52b of the UrhG, that the digitisation of works by publicly accessible libraries cannot have the result of the number of copies of each work made available to users by dedicated terminals being greater than that which those libraries have acquired in analogue format. Secondly, although, by virtue of that provision of national law, the digitisation of the work is not, as such, coupled with an obligation to provide compensation, the subsequent making available of that work in digital format, on dedicated terminals, gives rise to a duty to make payment of adequate remuneration.
49. Having regard to the foregoing considerations, the answer to the second question is that Article 5(3)(n) of Directive 2001/29, read in conjunction with Article 5(2)(c) of that directive, must be interpreted to mean that it does not preclude 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. The third question
50. By its third question, the referring court is essentially asking whether Article 5(3)(n) of Directive 2001/29 must be interpreted to mean that it precludes Member States from granting to publicly accessible libraries covered by that provision the right to make works available to users by dedicated terminals which permit the printing out of those works on paper or their storage on a USB stick.
51. As is clear from paragraphs 40 and 42 of the present judgment, the limitation laid down in Article 5(3)(n) of Directive 2001/29 covers, in principle, only certain acts of communication normally falling under the exclusive right of the author provided for in Article 3 of that directive, namely those by which the establishments in question make a work available to individual members of the public, for the purpose of research or private study, by dedicated terminals installed on their premises.
52. It is undisputed that acts such as the printing out of a work on paper or its storage on a USB stick, even if made possible by the specific features of the dedicated terminals on which that work can be consulted, are not acts of ‘communication’, within the meaning of Article 3 of Directive 2001/29, but rather of ‘reproduction’, within the meaning of Article 2 of that directive.
53. What is involved is the creation of a new analogue or digital copy of the work that an establishment makes available to users by means of dedicated terminals.
54. Such 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. Moreover, since those acts are carried out not by the establishments referred to in Article 5(3)(n) of Directive 2001/29, but rather by the users of the dedicated terminals installed within those establishments, they cannot be authorised under that provision.
55. By contrast, such acts of reproduction on analogue or digital media may, if appropriate, be authorised under the national legislation transposing the exceptions or limitations provided for in Article 5(2)(a) or (b) of Directive 2001/29 since, in each individual case, the conditions laid down by those provisions, in particular as regards the fair compensation which the rightholder must receive, are met.
56. Furthermore, such acts of reproduction must observe the conditions set out in Article 5(5) of Directive 2001/29. Consequently, the extent of the texts reproduced may not, in particular, unreasonably prejudice the legitimate interests of the rightholder.
57. Having regard to the foregoing considerations, the answer to the third question is that Article 5(3)(n) of Directive 2001/29 must be interpreted to mean that it does not extend 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. Costs
58. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.