Interlibrary lending and document delivery: what are the implications of the SUBITO-case? Libraries and Information Law Helsinki, 18 February 2009 Dr. Harald Müller

What is SUBITO ? “SUBITO is the brand name of the document delivery service of research libraries in Germany, Austria and Switzerland. SUBITO provides a quick and easy-to-use service which makes copies of articles from periodicals or books, sends them to the user and supports the lending of books.” SUBITO is a private company Company partners = all participating libraries SUBITO started 1994 as federal/state initiative by the German Federal Ministry of Research and Technology

The starting point or „in the good old days“ (= before 2008) Germany had no law or statutory regulation for document delivery by libraries

Court cases on document delivery 1999 Federal supreme court „TIB“ case (allows analog document supply) 1999Court of appeal Frankfurt case (allows digital document supply) 2007Court of appeal Munich „Subito“ case (prohibits digital document supply)

Subito case notes: The SUBITO Case in Germany: Implications for Libraries (about decision of first instance) Subito case in Germany - decision of the Court of Appeal in Munich (OLG München) In: EBLIDA News Nr June

The SUBITO Case Started: 18 June 2004 Court: Landgericht Munich (1. instance) Plaintiffs: German Publisher`s Association (Börsenverein) & Stichting STM Labeled as „test“ case (Musterprozeß)

Application Stop document delivery (copies of articles) to end users via , ftp active, internet download. Stop document delivery (copies of articles) to other libraries (ILL) via , ftp active, internet download PLUS fax and letter mail.

Main arguments Subito is a commercial enterprise German copyright law does not allow mailing of digital reproductions A library must buy a license from the publisher Interlibrary Loan ILL is not a sufficient base for document delivery, because mailed copies are not ”on loan”

(Final) judgment 10 May 2007  Court of appeal Munich (Oberlandesgericht)  Fulltext:   Nov both parties signed settlement not to bring the case before Federal Supreme Court  Judgement is now final

Mailing of paper copies via ILL is illegal, because it violates art. 53 (VI) German copyright law. BUT: it is allowed as customary law, as for decades nobody objected to this „illegal“ practice. Mailing of digital copies is illegal and prohibited.

Only seven months later...

Germany: Copyright law amendment, Jan Art. 53a Sending copies on demand (1)The reproduction and transmission via mail or fax by public libraries of single articles published in newspapers and journals as well as small parts of published works is permissible for single orders as long as the use by the client is allowed by art. 53. The reproduction and transmission in other electronic form is permissible exclusivly as a graphic file and for illustration of instruction or for scientific research purposes, as far as this is justified for non-commercial purposes. The reproduction and transmission in other electronic form is permissible further only, if access to the articles or small parts of a work is obviously not possible for members of the public on a contractual base under reasonable conditions from places and at times of their choice. (2) The copyright owner shall recieve a fair remuneration for the reproduction and transmission. This right can be claimed only through a collecting society. New

Only for libraries for instruction purposes, or for scientific research purposes If there is no commercial service available which must be obviously and under reasonable conditions Electronic document delivery allowed with restrictions

SUBITO‘s reaction to the case PANIC without consultation or feedback before 2008 Copyright Law Amendment came into force signed a licence contract with publishers = complete surrender to publishers‘ interests

Complete surrender to publishers‘ interests DRM on digital copy Only 10 copies journal/year Transfer of metadata for each article to publisher No computerfax allowed Much money for publishers, almost none for authors A lot more of legal disadvantages for libraries

Implications for libraries SUBITO lost customers in dramatic numbers SUBITO lost 25% supplying libraries High encrease of document delivery systems by libraries outside of SUBITO Legal certainty for document delivery Publishers won the SUBITO case, but lost on document delivery in the final end, because of the rules of market economy