University may digitise works from publisher's programme

By judgment of 13 May 2009 (file no.: 2-06 O 172/09) the 6th Civil Chamber of the Regional Court of Frankfurt am Main ruled on the applications of a publishing house to prohibit the defendant, a university library, from digitising works from the applicant's publishing programme and making them available at electronic reading stations. The applications were also directed at prohibiting the respondent from allowing users of its electronic workstations to print and/or copy the digitised works onto a USB stick or other carrier for digitised works and from offering works from the applicant's publishing house electronically.

The Board prohibited the respondent alone from allowing users of the library to copy digitised works published by the applicant's publishing house onto USB sticks or other carriers for digitised works and/or from taking such copies from the library premises. The further application was rejected.

In reaching its decision, the board assumed that the digitisation of works published by the applicant and the making available of the digitised works at electronic workstations in the respondent's library did not constitute copyright infringements. According to the board, the applicant was entitled to these possibilities under Section 52 b UrhG, since it was to be assumed that the respondent only made its offer available on the premises of its library and that the offer was made accessible solely for research and private studies. The fact that the applicant made the respondent an offer to use the digitised works - which was not accepted by the respondent - did not prevent this, since Section 52 b UrhG was only excluded by an existing contractual provision, as was already apparent from its wording. This was also to be inferred from the fact that Section 53 a UrhG referred to the "making possible" of a contractual arrangement. If the legislature had also wanted this to be sufficient in the context of Section 52 b UrhG, it would have been obvious to choose a corresponding wording of the law here as well.

Finally, the applicant was also not unreasonably disadvantaged by the possibilities arising for the defendant from Section 52 b UrhG, since the encroachment on its rights was not significantly more intensive than in the case of the possibilities arising from Section 53 (2) UrhG, which had already existed for years. In addition, the library was obliged to pay a corresponding remuneration for the licence rights resulting from the Act. Only the enabling of the reproduction of the digitised version of the works published by the applicant's publishing house on USB sticks or other carriers for digitised works was to be prohibited from the respondent, subject to avoidance of the statutory means of order. § Section 52 b UrhG was intended solely to enable use of digitised works comparable to analogue use. Thus, it was permissible to make copies in print form, as only in this way was it possible to scientifically evaluate texts, e.g. by underlining and annotating. However, it was not permissible for the defendant to allow users of the digitised works to save them on a USB stick, for example, in order to be able to use them outside the library. The wording of Section 52 b UrhG, which limits the rights of use to use within the premises of the library, already prevented this.

Judgment of the Regional Court of Frankfurt am Main of 13 May 2009 (Ref.: 2-06 O 172/09)


Source: Press release of the LG Frankfurt a.M.


Attorney at Law Michael Ullrich, LL.M. (Information Law)

Specialist lawyer for information technology law (IT law)