03/02/2020 CURIA - Documents licences should be promoted which, without creating imbalances, favour such establishments and the disseminative purposes they serve. When applying the exceptions and limitations provided for in this Directive, they should be exercised in accordance with international obligations. Such exceptions and limitations may not be applied in a way which prejudices the legitimate interests of the rightholder or which conflicts with the normal exploitation of his work or other subject-matter. … The exceptions and limitations referred to in Article 5(2), (3) and (4) should not, however, prevent the definition of contractual relations designed to ensure fair compensation for the rightholders insofar as permitted by national law. … Member States should promote voluntary measures taken by rightholders, including the conclusion and implementation of agreements between rightholders and other parties concerned, to accommodate achieving the objectives of certain exceptions or limitations provided for in national law in accordance with this Directive. …’ Article 2 of that directive, entitled ‘Reproduction right’, provides: ‘Member States shall provide for the exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part: for authors, of their works; …’ Article 3 of the same directive, entitled ‘Right of communication to the public of works and right of making available to the public other subject-matter’, provides in paragraph 1: ‘Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.’ Article 5 of the same directive, entitled ‘Exceptions and limitations’, provides in paragraph 2: ‘Member States may provide for exceptions or limitations to the reproduction right provided for in Article 2 in the following cases: in respect of reproductions on paper or any similar medium, effected by the use of any kind of photographic technique or by some other process having similar effects, with the exception of sheet music, provided that the rightholders receive fair compensation; in respect of reproductions on any medium made by a natural person for private use and for ends that are neither directly nor indirectly commercial, on condition that the rightholders receive fair compensation which takes account of the application or non-application of technological measures referred to in Article 6 to the work or subject-matter concerned; in respect of specific acts of reproduction made by publicly accessible libraries, educational establishments or museums, or by archives, which are not for direct or indirect economic or commercial advantage; Article 5(3) of that directive provides: ‘Member States may provide for exceptions or limitations to the rights provided for in Articles 2 and 3 in the following cases: … use by communication or making available, for the purpose of research or private study, to individual members of the public by dedicated terminals on the premises of establishments referred to in paragraph 2(c) of works and other subject-matter not subject to purchase or licensing terms which are contained in their collections; According to Article 5(5) of the same directive: ‘The exceptions and limitations provided for in paragraphs 1, 2, 3 and 4 shall only be applied in certain special cases which do not conflict with a normal exploitation of the work or other subject-matter and do not unreasonably prejudice the legitimate interests of the rightholder.’ German law Paragraph 52b of the German Law on copyright (Urheberrechtsgesetz, ‘UrhG’) of 9 September 1965 (BGBl. I, p. 1273), in the version applicable at the date of the facts in the main proceedings, is worded as follows: ‘Reproduction of works at electronic reading points in public libraries, museums and archives So far as there are no contractual provisions to the contrary, it shall be permissible to make published works available from the holdings of publicly accessible libraries, museums or archives, which neither directly nor indirectly serve economic or commercial purposes, exclusively on the premises of the relevant establishment at electronic reading points dedicated to the purpose of research and for private study. The number of copies of a work made available at electronic reading points shall not, in principle, be higher than the number held by the establishment. Equitable remuneration shall be paid in consideration of their being made available. The claim may be asserted only by a collecting society.’ The dispute in the main proceedings and the questions referred for a preliminary ruling TU Darmstadt operates a regional and academic library in which it installed electronic reading points that allow the public to consult works contained in the collection of that library. Since January or February 2009, those works have included the textbook of Schulze W., Einführung in die neuere Geschichte (‘the textbook at issue’), published by Ulmer, a scientific publishing house established in Stuttgart (Germany). TU Darmstadt did not take up Ulmer’s offer of 29 January 2009 of an opportunity to purchase and use the textbooks it publishes as electronic books (‘e-books’), including the textbook at issue. curia.europa.eu/juris/document/document.jsf?docid=157511&mode=req&pageIndex=1&dir=&occ=first&part=1&text=&doclang=EN&cid=1044953 2/6