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17 Global Jurist [i] (2017)

handle is hein.journals/globjur17 and id is 1 raw text is: Argyri Panezi'2 The Role of judges in Deciding the Future of Digital Libraries 1European University Institute, Department of Law, Via Bolognesel56,50139 Florence, Italy, E-mail: argyri.panezi@eui.eu 'New York University Law School, Global Fellow, 22Washington Square North, 402,1ooll NY, USA, E-mail: argyri.panezi@eui.eu Abstract: Judges sitting in US and EU courts have adjudicated a number of high-profile cases of mass and small-scale digitization and access to digitized material. These cases have important policy effects mounting to shaping the future of digital libraries insofar as the current copyright framework does not change from the legislative branch. This article focuses on the judges' struggle to achieve progressive (pro-libraries and pro-technology) results interpreting the applicable rules. American judges, on the one hand, primarily utilized doctrinal tools such as the fair use doctrine. European judges, on the other hand, used interpretative methods that can push the limits of exceptions and limitations favoring libraries. The article seeks to bring the role of the judiciary to the spotlight, analyze the wording of the relevant decisions and offer a possible reading of the responsibility that the judges must have experienced adjudicating these cases. Ultimately it urges legislative reform to be a follow-up to the judges' support of the benefits of digitization the future of libraries in the digital era. Keywords: libraries, digitization, copyright, e-lending, Google books DOI: 10.1515/gj-2015-0025 1 Introduction During this past decade four distinct cases related first, to digitization (mass and small-scale) and second, to access to library books in digital forms have been brought before both American and European courts. All these cases are arguably affecting if not shaping, at least for the short-term, the future of digital libraries, each in different ways and with different scope and intensity. On one side of the Atlantic Google's mass digitization project started what became a ten-year long legal controversy in the United States. The courts dealt with two parallel cases at the first instance and finally at the appellate level: the first, Authors Guild, Inc. v. Google Inc,' is about Google's mass scanning of books for the creation of the Google Books service (hereinafter 'Google Books case'). The second case involves HathiTrust, the consortium of research libraries that partnered with Google in the digitization project and created their own database from the digital copies they received from Google (Authors Guild, Inc. v. HathiTrust).2 On the other side of the Atlantic, and rather more recently, two cases were brought before the European Court of Justice in Luxemburg, the first originating in Germany and the other in the Netherlands. The German case, Technische Universitdt Darmstadt v. Eugen Ulmer KG,3 dealt with small-scale digitization and on-premises display of a library book. The Dutch case, Vereniging Openbare Bibliotheken v. Stichting Leenrecht, has brought the issue of e-lending to the forefront.4 The final decision of the court was issued on the 10th of November this year and is at this point the most recent development in the digital libraries legal saga.5 These four cases demonstrate how copyright laws, mostly drafted in the pre-digital era, pose legal challenges to digitization and the creation of digital libraries; and at the same time the opposite is also true. Digitization poses challenges to current laws and all the more has evidently puzzled judges entrusted with solving the ris- ing issues. All the judges appointed to these cases were confronted with complex legal questions owing their difficulty not only to the technical nature of copyright law when digitization comes to play but also to the com- plexity of interpreting rules drafted to be applied to the analogue rather than the digital world. Understandably, technology preceded the law. Thus, judges were quickly confronted with questions, bigger or smaller, that have not been solved yet by legislation or policy. This is for example the case with the digitization of orphan works in the United States - one of the relevant issues for the Google Books case, or with the issue of e-lending as it arises in the latest European case. This article claims that the judges in these cases had to assume the role of policy makers and to interpret copyright laws in a way that would take into account the potentials of digitization as well as the future of Argyri Panezi is the corresponding author. 9 2017 Walter de Gruyter GmbH, Berlin/Boston. DE GRUYTER Global jurist. 2017; 20150025

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