How German libraries are able to copy their complete holdings, both analogue and digital, with the blessing of the German Copyright Act

As part of our work to support legal and policy change that favours 21st century access to research, education and culture, we’re happy to share the first of a series providing insights into library and archive copyright exceptions. We are grateful to Harald Müller, member of the Knowledge Rights 21 Policy Committee, for this contribution.  

Very few people know that the German Copyright Act contains a permitted act for libraries to copy/digitise their complete collection (including their licensed e-collections) for specific purposes. This is a highly useful possibility open to libraries, and one which provides a good model for governments elsewhere in Europe and the world.

The first key point is that, since 2018, Section 60e of the Copyright Act allows that:

(1) Publicly accessible libraries which neither directly nor indirectly pursue commercial purposes (libraries) may reproduce a work from their holdings or exhibitions, or have such a work reproduced, for the purpose of making available, indexing, cataloguing, preservation and restoration, including more than once and with technically necessary alterations.

(2)…

This reflects the view of the German national parliament that libraries are memory institutions (Gedächtnisinstitutionen), which are responsible for  preserving cultural heritage for future generations.

A second – and more far-reaching – provision comes in the Explanatory Memorandum associated with the provision when initially proposed by the Federal Government (Bundestag Drucksache 18/12329 p. 42). This explained the revised text of s.60e as follows (emphasis added):

The works must belong to the holdings of the library. This also includes electronic media, which the library may grant its users access to on the basis of usage contracts with content providers. This is because digital long-term archiving ( or preservation) requires, for example, the creation of backup copies and the copying of files to other data carriers because their durability is limited in time.

In other words, the law covers not just materials that are traditionally owned by libraries, but also licensed electronic materials. As a result, since 2018 all libraries in Germany can use this exception to copy/digitise all media in their holdings, including by implication all works accessible over the internet.

Of course publishers don’t like this and would like to prohibit it in their access contracts, but it turns out that even this isn’t possible, as since 2018 the German Copyright Act contains yet another surprise – protection from contract override of the statutory exceptions in question:

Section 60g Use permitted by law and contractually authorised use

• Rightholders may not refer to agreements which restrict or prohibit uses permitted under sections 60a to 60f and such restriction or prohibition is to the detriment of the persons entitled to such use.

This in effect prevents the terms of such access contracts from undermining the rights given to libraries and their users in these Articles, with only a few limited derogations from this. The contract override principle is not new in the German copyright act. You can find it in Sections 32, 38, 55a, 87e of the law too.

In short, this combination of provisions provides a useful example for libraries of a text that broadly facilitates their work to preserve both analogue and licensed digital materials, including in the face of potential contract override. Libraries and archives in other European countries could ask their governments to legislate likewise.