Provision of specialist books on the internet permissible?

The Higher Regional Court (OLG) Stuttgart had to decide whether and/or to what extent universities are permitted to display parts of textbooks for their students on the internet and to make them available for download.

The Distance Learning University of Hagen had made parts of a textbook published by the Alfred Kröner Verlag available to its students on their intranet for download, retrieval and printing. This involved approximately 1/5 of the textbook. The publisher evaluated this provision as an infringement of copyright usage rights and demanded cessation. The Distance Learning University of Hagen was of the opinion that the provision was not objectionable within the framework of instruction at a university and for research purposes.

Decision of the court

By means of judgment of 04.04.2012 – Az. 4 U 171/11 – the Higher Regional Court (OLG) confirmed the decision of the lower court and granted the claim in full.

The exemption provision for research and science with regard to the use of copyrighted works applies only to a very limited extent. In the present case, the chosen manner of public making available did not include only small parts of the textbook which served to illustrate the instruction. The students were provided with the entire required reading material, so that the acquisition of the book was no longer necessary.

The Higher Regional Court (OLG) prohibited the Distance Learning University of Hagen from distributing any part of the textbook exceeding three pages, provided that these are downloadable, retrievable or printable. Leave to appeal to the Federal Court of Justice (BGH) was granted.

Conclusion

When making copyrighted works available on the internet, the greatest possible restraint is required even within the context of science and research, insofar as the copyright holder has not expressly authorised such publication. Otherwise, one runs the risk of being issued a cease-and-desist letter by the corresponding rights holders.