Presented at CONUL Annual Conference, May 2022, Limerick, Ireland

1. Digitise or be damned?
E-book options for research libraries
David Meehan
Dublin City University
Chair, CONUL Regulatory Affairs Sub-Committee (RASC)

2. Limits to ebook offer
Available commercial & open access sources
But large access gaps because of:
•Licence restrictions
•Excessive costs, or
•Absence of digital versions

3. How can we fill that gap, legally?
Under Irish law, research libraries have four
well-rehearsed but limited options for
digitising/processing works in their
permanent collections

4. 1. Copying for preservation (section 65, CRRA)
• From permanent collections for preservation or replacement, where not
reasonably practicable to purchase
• E.g.: typically for heavily used items/special collections
2. Copying for access on dedicated terminals (section 69A(1))
• From permanent collections for on-premises education, teaching,
research, study

5. 3. Copying for access to orphan works (section 70A)
• Reproduction (including digitisation) for communication
• NB: potential compensation
4. Modifying for visually impaired/print disabled (section 104)
• Make a copy modified to supply to a person with a disability
• NB: only for purpose intended

6. Some observations
These are all specific purpose exceptions
They are subject to clear limits
• ‘preservation’; ‘on-site terminals’; ‘orphan works’; ‘impairment needs’
They do not enable general, extensive online access to full
text works digitised from own collections

7. Do we have other options?
Yes (most probably)!

8. EU copyright law recognises the new digital
environment
The ‘Information Society’ Directive (2001) and the ‘Rental and Lending
Rights’ Directive (2006) recognise economic realities and economic
developments such as new forms of exploitation
The Court of Justice gave specific examples:
• The InfoSoc directive presupposes a right to digitise works in a collection for
dedicated terminals (TU Darmstadt) (2014)
• Lending carried out digitally is ‘indisputably’ a new form of exploitation.
Copyright must adapt to the new economic developments (VOB) (2016)

9. The headline impact…
EU law explicitly recognises that for ‘Controlled Digital
Lending’ ‘new forms of exploitation’ include print-to-digital
and remote access. The format and the place of access is
irrelevant
• An ebook is a book
• It can be loaned in the same manner as a print book

10. Another angle?
The same principles emerging from CDL ‘new forms of
exploitation’ could imply on-site ‘dedicated terminal’ access
now include internet access…
… subject to appropriate limitations.

11. Digital subject to ‘normal use’ constraints
Any digital exploitation must replicate normal patterns of access
Access to digitised books must be controlled, e.g.
• For lending
 Digital lending capacity must not exceed print; not usable after a set period
 Respect the ‘owned-to-loaned’ ratio (IFLA)
• For access through terminals
 Do not prejudice normal exploitation; do not cause unjustified harm to rightholder
 Do not digitise an entire collection; for individual research/study

12. Realistic implications for CONUL libraries

13. Lending in Ireland – analogue or digital?
Section 58(1) covers lending of ‘copies’ of a work by educational
establishments. This arguably now includes digital lending, i.e. digital
versions of print books
There is a question mark. VOB applies to public library lending, not explicitly
to educational establishments
However, in light of the general recognition of ‘new forms of exploitation’, a
realistic interpretation is likely to include educational digital lending

14. Access – on-site or online?
Access through section 69A(1) dedicated terminals is uncontroversial
EU case law confirms the right to digitise for on-site terminals…
… and the ‘new forms of exploitation’ formula suggests that digital
access online is now a viable option, especially when ‘controlled’

15. Are there risks?
Yes…
… individual libraries are still on their own…
… but the trends are going in one direction
• Law no longer distinguishes between physical and digital formats
• Analogous controls can be placed on physical and digital access

16. Some practical notes
Digitisation from permanent collections for specific online uses is feasible:
• For lending of a work in demand
• For textbook provision, including multiple copy access
• For access to special collections
There is no requirement to use a publisher’s e-book
• In TU Darmstadt, the library provided access to a scientific textbook it had digitised itself
• It chose not to purchase an available e-book version offered to it
The issue now is to determine the ‘real world’ digital limits. Likely be conditioned by:
• Technical and administrative costs of digitisation, security and online delivery
• Reasonable commercial publisher responses to demand
• Trends in OA publishing

17. Key references
CJEU, Case C-117/13, Technische Universität Darmstadt v Eugen Ulmer KG, ECLI:EU:C:2014:2196
CJEU, Case C-174/15, Vereniging Openbare Bibliotheken v Stichting Leenrecht, ECLI:EU:C:2016:856
EU, Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the
information society. Official Journal of the European Communities, L 167/10, 22.6.2001
EU, Directive 2006/115/EC on rental right and lending right and on certain rights related to copyright in the
field of intellectual property (codified version). Official Journal of the European Communities, L 376/28,
27.12.2006
EU, Directive 2019/790 on copyright and related rights in the Digital Single Market. Official Journal of the
European Union L 130/92, 17.5.2019
International Federation of Library Associations and Institutions, IFLA Position on Controlled Digital Lending.
https://repository.ifla.org/handle/123456789/1835
Ireland, Copyright and Related Rights Act, 2000 as amended (unofficial consolidation).
https://enterprise.gov.ie/en/Legislation/Legislation-Files/Unofficial-consolidated-Copyright-and-Related-Rights-
Act-2000-as-amended-.pdf

18. David Meehan
Associate Director, Special Collections & Archives, DCU Library
david.meehan@dcu.ie
Chair, Regulatory Affairs Sub-Committee (CONUL)
https://conul.ie/regulatory-affairs/