On Thursday the European Union’s Court of Justice issued an opinion that allows libraries to digitize books in their holdings and make those digital copies accessible, on site, to patrons. In a way, this is a remarkable ruling that recognizes the unique place of libraries in the dissemination and democratization of knowledge. Yet the decision does not really give libraries a tool that promises to be very useful. It is worth taking a moment, I think, to reflect on what this EU ruling is, what it is not, and how it compares to the current state of things for U.S. libraries.
What the EU Court of Justice said is that, based on the EU “Copyright Directive,” libraries have permission to make digital copies of works in their collections and make those copies available to patrons on dedicated terminals in the library, The Court is interpreting language already found in the Directive, and adding two points. First, library digitization is implied by the authorization for digital copies on dedicated terminals contained in the Directive, and, second, that this is permissible even if the publisher is offering a license agreement. Finally, the Court makes clear that this ruling does not permit further distribution of copies of the digitized work, either by printing or by downloading to a patron’s storage device.
As far as recognizing what this decision is not, it is very important to realize that it is not the law in the United States. It is easy sometimes, when the media gets ahold of a copyright-related story, to forget that different jurisdictions have different rules. The welter of copyright information, guidelines, suggestions and downright misinformation can make the whole area so complex that simple principles can be forgotten. So let’s remind ourselves that this interesting move comes from the European Union Court of Justice and is the law only for the EU member states.
The other thing this ruling is not is broad permission for mass digitization. The authorization is restricted to copies that are made available to library patrons on dedicated terminals in the library. It does not permit wide-spread distribution over the Internet, just “reading stations” in the library. That restriction makes it unlikely, in my opinion, that many European libraries would invest in the costs of mass digitization just for such a relatively small benefit.
So how does this ruling in the EU compare to the rights and needs of libraries in the U.S.?
Let’s consider section 108(c) of the U.S. copyright law, which permits copying of published works for preservation purposes. That provision seems to get us only a little way toward what the EU Court has allowed. Under 108(c), a U.S. library could digitize a book if three conditions were met. First, the digitization must be for the purpose of preserving a book from the collection that is damaged, deteriorating, or permanently missing. Second, an unused replacement for the book must not be available at a fair price. Third, the digital copy may not be made available to the public outside of the library’s premises. This last condition is similar, obviously, to the EU’s dedicated terminal authorization; a patron can read the digital copy only while present in the library.
Two differences between the EU ruling and section 108(c) are especially interesting:
- The works for which this type of copying are allowed in the U.S are much more limited. The EU says that libraries can digitize any book in their collection, even if it is not damaged or deteriorating, and even if another copy, even a electronic one, could be purchased. This seems like the major place where the EU Court has expanded the scope for library digitization.
- On the other hand, the use of a digital copy may be less restricted in the U.S. Instead of a dedicated terminal, a U.S. library could, presumably, make the copy available on a restricted network, so that more than one patron could use it at a time, as long as all of them were only able to access the digital copy while on the library premises.
In the U.S., of course, libraries also can rely on fair use. Does fair use get us closer to being able to do in the U.S. what is allowed to European libraries? Maybe a little closer. Fair use might get us past the restriction in 108(c) about only digitizing damaged books; we could conceivably digitize a book that did not meet the preservation standard if we had a permissible purpose. And the restriction of that digitized book to in-library use only would help with the fourth fair use factor, impact on the market. But still we would have issues about the purpose of the copying and the nature of the original work. Would general reading be a purpose that supports fair use? I am not sure. And what books could we (or could we not) digitize? The specific book at issue in the case before the EU Court was a history textbook. But textbooks might be especially hard for a U.S. library to justify digitizing for even limited access under fair use.
If we wanted to claim fair use for digitizing a work for limited, on site access, my first priority would be to ask why — what is the purpose that supports digitization? Is a digital version superior for some articulable reason to the print copy we own (remembering that if the problem is condition, we should look to 108)? One obvious purpose would be for use with adaptive software by disabled patrons. Also, I would look at the type of original; as I said, I think a textbook, such as was at issue in the EU case, would be harder to justify under U.S. fair use, although some purposes, such as access for the disabled, might do it. Finally, I would look at the market effect. Is a version that would meet the need available? Although the EU Court said that European libraries did not need to ask this question, I think in the U.S. we still must.
Ultimately, the EU Court gave European libraries a limited but useful option here. Unfortunately, in the U.S. we have only pieces of that option available to us, under different parts of the U.S. law. It will be interesting to see whether, in this age of copyright harmonization, U.S. officials begin to reconsider this particular slice of library needs because of what the EU has ruled.