samuelson in Bodo 2015
are under consideration
by the Court of Justice of the European Union in a Dutch case (Rosati, 2014b). And while in another case
(Case C-117/13 Technische Universität Darmstadt v Eugen Ulmer KG) the CJEU reaffirmed the rights of
European libraries to digitize books in their collection if that is necessary to give access to them in digital
formats on their premises, it also created new uncertainties by stating that libraries may not digitize their
entire collections (Rosati, 2014a).
US libraries face a similar situation, both in terms of the narrowly defined exceptions in which libraries
can operate, and the huge uncertainty regarding the limits of fair use in the digital library context. US
rights holders challenged both Google’s (Authors Guild v Google) and the libraries (Authors Guild v
HathiTrust) rights to digitize copyrighted works. While there seems to be a consensus of courts that the
mass digitization conducted by these institutions was fair use (Diaz, 2013; Rosati, 2014c; Samuelson,
2014), the accessibility of the scanned works is still heavily limited, subject to licenses from publishers,
the existence of print copies at the library and the institutional membership held by prospective readers.
While in the highly competitive US e-book market many commercial intermediaries offer e-lending
6
The notable exception being orphan works which are presumed to be still copyrighted, but without an identifiable
rights owner. In the EU, the Directive 2012/28/EU on certain permitted uses of orphan works in theory eases access
to such works, but in practice its practical impact is limited by the many constraints among its provisions. Lacking
any orphan works legislation and the Google Book Settlement still in limbo, the US is even farther from making
orphan works generally accessible to the public.
13
Bodó B. (2015): Libraries in the post-scarcity era.
in: Porsdam (ed): Copyrighting Creativity: Creative values, Cultural Heritage Institutions and Systems of Intellectual P
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