Law and Information

The German National Library reached an agreement with the German Federation of the Phonographic Industry and the German Booksellers and Publishers Association on the circumvention of technological protection measures (TPM) such as access and copy controls on CDs, CD-ROMs, and e-books. See also here and here.

According to the press release (English version via this site), the German National Library got a “license to copy” techno-protected digital content for “own archiving, for scientific purposes of users, for collections for schools or educational purposes, for instruction and research as well as of works that are out of print.” To avoid misuses, the library “will check user’s interest” for a copy of the technologically protected content. Further, the copies, which are subject to a fee, “will as far as possible be personalized by a digital watermark.” (Press release.)

Let’s recall the legal background of this agreement as recently described in this paper:

Article 6(4) of the EU Copyright Directive (EUCD) addresses the situation where beneficiaries of certain copyright exceptions provided for in article 5 EUCD are hindered from making use of those exceptions due to the technological lock-down of the work. It is under article 6(4) where the balance between the interests of rightholders and holders of related rights using technological protection measures on the one hand and the public on the other can be struck. The exceptions set out in article 6(4) are divided into two categories: the ‘public policy exceptions’ and the ‘private copying exception’. The public policy exceptions listed in article 6(4) – i.e. exceptions in relation to photocopying, copy and archive purposes of educational facilities, broadcaster’s own ephemeral recordings, non-commercial broadcasts, teaching and research, use by disabled individuals, and public safety – are mandatory. However, recital 51 EUCD makes clear that member states should take appropriate measures only in absence of “voluntary measures taken by rightholders, including the conclusion and implementation of agreements between rightholders and other parties”. However, according to article 6(4) subpara. 4, this exception do not apply to “on-demand”-services, i.e. works “made available to the public on agreed contractual terms in such a way that members of the public may access them from a place and at a time individually chosen by them.”

Against this backdrop, the German Copyright Act, transposing the EUCD into national law, stipulates that the rightholders are obligated to make available the necessary means which enable certain categories of permissible uses. Some of the exceptions and limitations, respectively, also apply to digital media, but others not (click here for an overview.) Furthermore, the Copyright Act does not define how this obligation must be accomplished. However, � 95b(2) provides a remedy against someone who violates the make-available obligation. According to this provision, someone who fails to make available the necessary means can be sued by the beneficiary.

In accordance with the EUCD’s approach, the German legislator hoped that agreements between rightholders and consumers/users associations will be reached. (See here). It seems that the agreement between the German National Library and the above-mentioned associations is an important step forward.