Lakshmi Kumaran & Sridharan AttorneysAn ISO 9001 / 27001 certified law firm

Digital fair copies of copyrighted material

20 June, 2014

An opinion and a judgement, on either side of the Atlantic Ocean published within a span of five days dealt with exceptions from copyright available to institutions when books  – copyrighted or  otherwise were digitised and made available to the public.

In the case before CJEU, the Advocate General opined in Case C-117/13 on 5-6-2014 that Member States may authorise libraries to digitise, without the consent of the right-holders, books they hold in their collection so as to make them available at electronic reading points. The Technical University of Darmstadt digitised books in its library and made them available at electronic reading points. The Advocate General opined that this was not a violation of copyright and fell within the exception to copyright protection as available to publically accessible libraries which made the material available to users for research or study through dedicated terminals. However, permitting copying of the same on a USB storage device would be a violation. The CJEU will give its judgement on the case at a later date.

The Court of Appeal for Second Circuit in No. 12‐4547‐cv (q2case), held on 10-6-2014 that doctrine of fair use allows libraries to create a full‐text searchable database of copyrighted works and to provide the same in formats accessible to those with print disabilities. The US finding of fair use was based on transformative use in creating a fully searchable data-base, access to print disabled persons and the fact that no economic harm was caused to the potential market for/ value of the copyrighted work. The users could not view any portion of the books/material as such, therefore no new human readable copies were created.

It is noteworthy that in November last year, the United States District Court of Southern District of New York upheld the plea of fair use by search engine Google, in scanning and providing verbatim snippets of text to aid in searching, and increasing access to books to disabled and remote populations.
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