copyright european-union germany fair-use
Is it illegal in the EU / in Germany to download a scientific e-book?
<p>Suppose there's a scientific monograph I really want to read but don't want to buy. I find an e-book on some website (where it is accessible to the public without restrictions) and download it. I don't intend to resell it and am only using it on a personal level. Am I breaking the law?</p>

<p>My understanding is "yes":</p>

<ul>
<li>The scientific monograph is protected by copyright.</li>
<li>Downloading copyrighted material without the permission of the copyright owner has been known to be illegal for a long time.</li>
<li>Streaming copyrighted material (in the sense of looking at stuff that other people have uploaded without downloading it) without the permission of the copyright owner <a href="http://www.ip-watch.org/2017/04/28/european-court-justice-tightens-screws-streaming/" rel="nofollow noreferrer">became illegal in April 2017</a>.</li>
<li>Motivation for pirating was not mentioned and so should not matter.</li>
</ul>

<p>However some people claim this may be legal (and claim that it is certainly legal for single papers rather than a full book; see discussions <a href="https://academia.stackexchange.com/q/120248/7319">here</a> and <a href="https://academia.stackexchange.com/q/87688/7319">here</a>). Their argument hinges on:</p>

<ul>
<li>Scientific research isn't the same as other copyrighted material.</li>
<li><a href="https://www.gesetze-im-internet.de/englisch_urhg/englisch_urhg.html" rel="nofollow noreferrer">Section 60c of the German law</a> says one can do this for personal scientific research. I can't sell the book, but if it's for my own personal reading I'm not breaking any laws.</li>
</ul>

<p>I would like to resolve: is it legal to download the book or not?</p>

<p>The setting is the EU, and if the country within the EU matters, the country is Germany.</p>

<h2>Summary</h2>

<ol>
<li>Downloading from the internet constitutes an act of reproduction according to EU law, however</li>
<li>The EU allows Member States to implement an exception permitting personal-use copies from lawful sources, and</li>
<li>Germany implements such an exception, but</li>
<li>Germany's personal-use exception is narrower than the base EU exception and doesn't generally apply in this case.</li>
</ol>

<p><em>Note: My answer concerns whether or not the private copying exception applies to the download specified in the question. There could be other avenues to explore, such as Section 60c mentioned in the question and <a href="https://law.stackexchange.com/a/33645/3209">phoog's answer</a>.</em></p>

<h2>Downloading as an act of reproduction</h2>

<p>As a literary work, a scientific monograph is given protection against unauthorized acts of reproduction by the EU's <a href="http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32001L0029&amp;from=EN" rel="nofollow noreferrer">Copyright Directive</a> in Article 2. This includes an end user downloading from the internet. </p>

<p>While it was surprisingly difficult to find an authoritative direct statement to that effect (most sources just assume this to be true), the <a href="http://curia.europa.eu/juris/document/document.jsf?docid=190142&amp;doclang=EN" rel="nofollow noreferrer"><em>Filmspeler</em></a> ruling contains such language in paragraph 22 and paragraphs 69-72.</p>

<h2>The EU's private copy exception</h2>

<p>Despite the protection given by Article 2, Article 5(2)(b), henceforth the <strong>private copy exception</strong>, is one way to legally create copies without authorization. It allows Member States to enact exceptions:</p>

<blockquote>
  <p>(b) in respect of reproductions on any medium made by a natural person for private use and for ends that are neither directly nor indirectly commercial, [...<sup>1</sup>]</p>
</blockquote>

<p>While this provides a baseline for private copy, in order to fully understand its scope, we must examine the landmark <em><a href="http://curia.europa.eu/juris/document/document.jsf?text=&amp;docid=150786&amp;pageIndex=0&amp;doclang=EN&amp;mode=req&amp;dir=&amp;occ=first&amp;part=1&amp;cid=497243" rel="nofollow noreferrer">ACI Adam</a></em> ruling. In it, the Court of Justice of the European Union ruled that the private copy exception cannot apply when the source of the reproduction is unlawful (paragraphs 56-58). </p>

<p>Additionally, according to <a href="https://ipkitten.blogspot.com/2014/04/what-does-aci-adam-decision-mean-for.html" rel="nofollow noreferrer">analysis</a> by Eleonora Rosati on the the IPKat blog, ACI Adam clarified that Member States cannot expand on the allowed copyright exceptions, they can only make them more narrow.</p>

<p>Following just the baseline EU private copy exception, the download specified in the question is legal provided that the source is lawful<sup>2</sup>.</p>

<h2>Germany's private copy exception</h2>

<p>Germany transposes the baseline EU private copy exception into section 53(1) of its copyright act (<a href="https://www.gesetze-im-internet.de/urhg/__53.html" rel="nofollow noreferrer">German link</a>, footnotes are mine):</p>

<blockquote>
  <p>(1) It shall be permissible for a natural person to make single copies of a work for private use on any medium, insofar as they neither directly nor indirectly serve commercial purposes, as long as no obviously unlawfully-produced model<sup>3</sup> or a model which has been unlawfully made available to the public<sup>4</sup> is used for copying. [...]</p>
</blockquote>

<p>While private copying is therefore generally allowed in Germany, it implements a limiting exception to the private copy exception in section 53(4) as allowed by ACI Adam. The clause prevents unauthorized non-manual copies in the case of sheet music, periodicals, and <strong>books</strong>, unless they've been out of print for 2 years.</p>

<p>Therefore in Germany, the download in question is only legal under the private copying exception if the source is not obviously unlawful <strong>and</strong> the book has been out of print for at least 2 years.</p>

<h2>Footnotes</h2>

<ol>
<li><p>Two other restrictions on private copy not particularly relevant to this question. One is not circumventing technological locks, the other is that the rightholder must receive "fair compensation." In practice, this isn't handled by the private copier, but by collection societies which get funds from levies on storage media then redistributes them to rightholders.</p></li>
<li><p>However, while I've not found a reference for it, I highly suspect the downloading of an entire in-commerce book would be found to violate the <a href="https://en.wikipedia.org/wiki/Berne_three-step_test" rel="nofollow noreferrer">Berne three-step test</a>, implemented in the EU in Article 5(5), which requires that copyright exceptions only apply in "certain special cases which do not conflict with a normal exploitation of the work or other subject-matter and do not unreasonably prejudice the legitimate interests of the rightholder."</p></li>
<li><p>The edges of "obviously unlawful" are a little fuzzy. In <em><a href="http://curia.europa.eu/juris/document/document.jsf?text=&amp;docid=150786&amp;pageIndex=0&amp;doclang=EN&amp;mode=req&amp;dir=&amp;occ=first&amp;part=1&amp;cid=497243" rel="nofollow noreferrer">ACI Adam</a></em>, it was determined at the EU level that the private copying exception <strong>must</strong> only apply to lawful sources, and so the German law might be inconsistent with EU law. Reading through the decision, however, the logic could also apply to sources which <em>appear</em> to be lawful so there's still hope for the German law. This is (debatably) the approach that was taken in <em><a href="http://curia.europa.eu/juris/document/document.jsf?docid=190142&amp;doclang=EN" rel="nofollow noreferrer">Filmspeler</a></em>. However, that ruling didn't address Article 5(2)(b), but Article 5(1), the temporary reproduction exception. If you're interested, <a href="https://law.stackexchange.com/a/7617/3209">I have a lengthy answer discussing the <em>Filmspeler</em> ruling</a>.</p></li>
<li><p>The translation here is poor and perhaps that's because it's not 100% clear in German either (I'm not fluent, I'd rate myself weak intermediate). Online sources conflict as to the exact meaning of this clause. Some say this clause prevents download from any public source, others only if it was made publicly available in an obviously illegal manner. I would lean towards the latter because that's closer to <a href="https://www.welt.de/wirtschaft/article13424260/Bei-Youtube-sind-Downloads-voellig-ungefaehrlich.html" rel="nofollow noreferrer">what the Justice Ministry thinks (German link)</a>.</p></li>
</ol>

<p><em>Editing note: This answer has changed significantly since its original posting. This is partly because I failed to notice section 53(4) the first time around, but mostly because of the incredible amount of intelligent comments and <a href="https://chat.stackexchange.com/rooms/86046/discussion-between-dpenner1-and-allure">chat</a> the original posting generated.</em></p>

<p>It's never illegal to download a copyright file if you have the permission of the copyright owner, so it depends on where you find the e-book and the license terms, if any, under which it is made available for download.</p>

<p>By definition, pirating is illegal. If you download the book legally, you are not pirating it.</p>

<p>Section 60c permits copying only up to 75% of a work for personal research, with some exceptions for smaller works that presumably do not apply to monographs, so it would not permit the download you describe if the download would otherwise be forbidden.</p>

<p>Otherwise, a work of scientific research is no different from any other copyright-protected work.  The author has a right to profit from the fruits of his or her labor.</p>

<h3>A resolution is impossible at this time</h3>
<p>Disclaimer: I am not versed in German or EU law particularly (but am familiar with the relevant law in other countries to various degrees.)</p>
<p>It <a href="https://academia.stackexchange.com/a/87009/7319">appears</a> that, so far, no-one has been prosecuted for individually downloading copyrighted material. This also suggests this matter, per se, has not been specifically ruled on by the German courts. (It may have been ruled on in passing as part of another legal matter, but other answers here have not quoted such a ruling).</p>
<p>Now, the German legal system is a <a href="https://en.wikipedia.org/wiki/Civil_law_(legal_system)#Differentiation_from_other_major_legal_systems" rel="nofollow noreferrer">&quot;continental law&quot; or &quot;civil law&quot; system</a>, so precedents do not matter as much, but still - we do not have here anything like a trained judge, having heard best-effort arguments from legal professionals on both sides, making a ruling. Until that happens, I don't think @Allure's question will be resolved.</p>
<p>More specifically, there are considerations such as:</p>
<ul>
<li>Whether downloading (as opposed to uploading to a publicly-accessible location or uploading to another individual) constitutes making a copy of a work.</li>
<li>How the law applies in a situation where copies have been circulated en-masse and are freely available regardless of a single additional reproduction.</li>
<li>Whether posting academic work onto the web for promoting academic studies, without license, is obviously-illegal (in the context of the personal use clause).</li>
<li>Whether the personal use clause is not to be combined with Section 60c(2).</li>
<li>Whether the inability to download &quot;75% of the book&quot; does not legalize the download of the entire book.</li>
<li>Whether uploading/distribution made outside of Germany (and the EU), that doesn't target Germans in particular, can be faulted for not adhering to German law just because a website is also visible from Germany.</li>
<li>Whether it is constitutional to prevent a person from what is essentially very much like &quot;picking up a scientific study book and reading it&quot;. Forbidding this might  violate constitution article...
<ul>
<li>1(1), human dignity?</li>
<li>2(1), free development of personality?</li>
<li>5(3), free science and research?</li>
</ul>
</li>
<li>et cetera, et cetera.</li>
</ul>
<p>which have not been presented and ruled on in a court of law, in this context. And - perhaps for good reason.</p>
