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European Court Of Justice Widens Digital Library Rights

In September 2014, the Court of Justice of the European Union ("CJEU") ruled to allow libraries to digitize and distribute books to reading terminals without a digitization licence. [1] Because of the manner of distribution, one wonders how the case will interact with the CBC v SODRAC appeal with regard to technological neutrality in Canada.

In Technische Universit├Ąt Darmstadt v Eugen Ulmer KG ("Darmstadt v Ulmer"), the CJEU ruled that the copyright exception for "research or private study" allows non-profit institutions promoting public knowledge to exercise limited reproduction and communication rights. [2] In other words, European libraries can make books available via dedicated terminals, thereby digitizing full books, without copyright holders' permission. [3]

The Darmstadt library ensured that no more than the number of people who could access hard copies of the book would be able to access the digital version. However, these reading terminals enable users to print entire works or save them to USB keys, thereby enabling reproduction without license. [4]

In this respect, the case is analogous to the landmark CCH Canadian v LSUC decision, wherein the Supreme Court of Canada ("SCC") ruled that photocopying materials for research purposes falls under the fair dealing exception within the Copyright Act. [5] This decision strengthened the exception for fair dealing significantly, but the doctrine remains in flux, with the copyright pentalogy only two years old. It may be illuminating to look outside Canadian borders.

Darmstadt v Ulmer appears to parallel the U.S. saga, Authors Guild et al. v Google, Inc. The distinguishing feature is that Google Books does not make the books available in their entirety, whereas the Technical University of Darmstad does. Google Books won a favourable ruling under the U.S. exception for fair use, allowing the digital library to display, in the court's words, "snippets" of copyrighted works without license. [6] While the U.S. District Court ruled that the Library Project use does not "supersede or supplant" the books themselves, [7] the use that the CJEU has allowed would do exactly that.

In Canada, no broad exception for fair use exists; any exception for fair dealing must be rooted in the statutory provisions. [8] If Canadian courts address Darmstadt v Ulmer, they must do so under the statutory exception for fair dealing for the purpose of research, private study or education. [9] Imagine that the Canadian courts adopt the CJEU's decision and allow libraries in Canada to distribute full works, though this enables reproducing the works via USB or printing. The decision amounts to allowing reproduction without license. Such a position seems antithetical to Canadian copyright law.

The distinguishing feature could be the means through which reproduction occurs: via terminal, USB or photocopy. The question is, should the courts consider the means or treat all technology according to its effect? The SCC recently granted leave to appeal the CBC v SODRAC 2003 Inc. And technological neutrality lies at the heart of the appeal. [10] It will be interesting to note how the SCC grapples with the inevitability of technological invention outpacing judicial review.

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