Litigation, Statutory Change, and Document Delivery in Germany
The copyright law of Germany was amended in recent years to more clearly address the application of digital technologies to the making of copies by libraries for a user’s private study. The circumstances in Germany offer insight into the conflicts and compromise that often accompany legislative change. Moreover, the statutory revision in Germany came as a result of litigation involving publishers and libraries that endured for several years and sometimes created even more confusion about the law.
The German copyright law long has included a provision broadly permitting single copies of articles and other works for study or other personal use (Section 53). The ability of libraries to make and deliver copies was not clearly specified in the law, and in 1994 the “Börsenverein,” a trade association of German publishers and booksellers, began legal proceedings against the German National Library of Science and Technology. The library had instituted and promoted a service of making and supplying copies of journal articles upon request, with payment of service fees by the user. After five years of litigation, the German court ruled that the library could make and deliver the copies, but only upon payment to a collective licensing agency.
In 2000, the publishers and libraries reached agreement allowing for a broad right to make copies, but with payment of “several million euros” to the licensing agency. This agreement was not renewed after 2002, and beginning in 2003 German libraries were able to secure a license only for delivery of articles by mail or fax within Germany. Shortly after, the parties became more contentious, filing various legal claims with the courts and with the European Commission, all aimed at addressing the scope of German copyright law as applied to libraries.
In December 2006, a German court ruled that Section 53 did not permit libraries to make and deliver copies through interlibrary loan services. The court nevertheless recognized the decades of library practices to rule that libraries may continue to deliver paper copies by mail or fax. But the court ruled that Section 53 does not permit digital reproduction and delivery. The court ruling not only limited the ability of libraries to use new technologies, but the ruling also left libraries to struggle with the scope of the law and the meaning of a statute that could be reinterpreted based on a record of library practices.
These developments were occurring as the German legislature was considering legislation for implementing the European Council Directive 2001/29/EC on the Information Society. Article 5 of the directive permits member states to enact limitations or exceptions for many purposes, including the making of copies by libraries under some conditions.