03/02/2020 CURIA - Documents 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. 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. 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. 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. 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. 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. 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 socalled ‘private copying’ exception provided for in Article 5(2)(b) of that directive. 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. 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. In those circumstances, the Bundesgerichtshof decided to stay the proceedings and refer the following questions to the Court for a preliminary ruling: 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? 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? 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 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. 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 curia.europa.eu/juris/document/document.jsf?docid=157511&mode=req&pageIndex=1&dir=&occ=first&part=1&text=&doclang=EN&cid=1044953 3/6