03/02/2020 CURIA - Documents 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). 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. 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 of specificity must be understood as meaning that, as a general rule, the establishments in question may not digitise their entire collections. 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. 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). 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. 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 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. 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. 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. 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. 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. 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. 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. 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 curia.europa.eu/juris/document/document.jsf?docid=157511&mode=req&pageIndex=1&dir=&occ=first&part=1&text=&doclang=EN&cid=1044953 5/6