03/02/2020 CURIA - Documents 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. 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’. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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 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. 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. 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. 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. 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. 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). 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 curia.europa.eu/juris/document/document.jsf?docid=157511&mode=req&pageIndex=1&dir=&occ=first&part=1&text=&doclang=EN&cid=1044953 4/6