Media

There is talk of the “death of the textbook”, of “reading places as download stations”: in questions of copyright, the interest of publishers and libraries are sometimes difficult to reconcile. The chronicle of a still open legal dispute.

In 2007, based on a EU-wide regulation, a paragraph was inserted into the German copyright law. In 2008 the amendment containing the new paragraph 52b came into effect. It permits public libraries, museums and archives “to make works from their holdings accessible at electronic reading places for purposes of research and private study”.

At the beginning of 2009, the Eugen Ulmer Publishers filed a suit against the Darmstadt University and State Library’s practical construal of this law. The Library of the Technical University has scanned about 100 of the textbooks in its holdings and made them available to its users at reading places in the Library.

Decline of the textbook?

The lawsuit is meant to clarify how digital books may be used at reading places. May entire parts of books be printed out? May the user make an electronic copy and take it home with him, for instance on a memory stick? It is clear for publisher Matthias Ulmer that “print-outs and copying are forms of duplication. And this is not provided for by the law”. From his point of view, it is “naturally a catastrophe if libraries may distribute textbooks free of charge. The textbook will then soon be dead”.

Yet the lawsuit is directed not only against the Darmstadt Technical University’s concrete interpretation of the law; it goes a step further. For Ulmer it is not acceptable that libraries themselves digitalise books, in spite of offers to do this by the publisher. “In many other countries the law doesn’t permit libraries to scan books if the publisher has made them a digital offer at reasonable terms.”

Increasing demand for electronic use

The Director of the Darmstadt University and State Library, Georg Nolte-Fischer, regards his policy as in accord with the law. “The law doesn’t say that electronic availability is ‘subject to approval’”, he explains. “Moreover, in accordance with Paragraph 52b, we allow only so many simultaneous uses at the electronic reading places as the number of print copies we’ve bought.” And use at a reading place, he adds, is not free of charge; the Library pays a fee to VG Wort .

For Nolte-Fischer, the availability of reading places is in any case only one of many tools to meet the great demand for electronic media: “First and foremost is still the purchase of licensed electronic media. We use more than half our acquisitions budget on this. Currently, we have alone 8,000 e-books on offer.”

Copying isn’t always copying

In a verdict delivered on May 13, 2009, the Frankfurt District Court confirmed that libraries may digitalise printed works in their holdings and make them available at reading places. In addition, the Court allowed users to print out parts of the works. Only electronic copies, downloads on storage media, are illegal.

Nolte-Fischer is satisfied by the judgement. He observes, however, that in this concrete case there is finally no difference between a digital copy and a printout. “We offer only graphic data, that is, copies of book pages. Optical character recognition, for example, isn’t possible with such data; ‘copy and paste’ doesn’t work here”. For him, it is particularly important that the library user can continue to print out parts of texts: “How else is he supposed to be able to do scholarly research?”

The quarrel continues

The Ulmer Publishing House has appealed this verdict. Matthias Ulmer wants, for instance, a precise clarification of “why analogue copies are permitted when electronic copies are illegal”. His goal continues to be that libraries may themselves digitalise works only if the publisher makes them no correspondingly reasonable offer. “With Paragraph 52b, legislators obviously wanted to prevent libraries from being blocked in the case that the publisher made no electronic offer”, he argues. “But it seems to me very odd that libraries can say, even when such an offer has been made, ‘Oh, no, we’d rather digitalise it ourselves’.”

Georg Nolte-Fischer sees things differently. “Libraries must have the right to decide freely whether or not they will accept a certain offer”, he believes. “The offer of the Ulmer Publishing House wasn’t completely acceptable to us, whereas we were quite able to come to terms with other publishers.” And so the judges of the Frankfurt Court of Appeals will have to come to grips with this case.