Kopienversanddienste und deutsches Urheberrecht nach dem »Zweiten Korb«

The article analyses a new statutory limitation in the German Copyright Act (UrhG) that became effective in January 2008 (in the course of the so called »Second basket« of the reform of the UrhG). According to Art. 53a UrhG public libraries are allowed to convey copies of copyright protected articles to their users without consent of the right holder. The exception distinguishes between a right to send such articles by mail or facsimile on the one hand and the submission via »other forms of electronic distribution« (especially by email or FTP) on the other.The article concludes that regarding mail and facsimile distribution the legal situation has not been changed by the legislator. The first alternative of Art. 53a para 1 UrhG only implements the 1999 »subito-decision« (subito is the most important German document delivery service) of the Federal Court of Justice. It allows sending copies of articles published in books or periodicals to the library users without further restrictions, provided that levies are paid to the VG WORT (the German collecting society for authors and publishers). This rule applies also to services that make digital copies (scans) of the ordered articles and transmit them to partner libraries, which will then print the article and hand out an »analogue« (paper) copy to the users. The investigation showed that the »internal« copies that are an integral part of the technical delivery process and the (electronic or »analogue«) transmission to another library acting on behalf of the ordering user are irrelevant for the assignment to one of the alternatives of Art. 53a UrhG. The distinction between the different alternatives rather depends on the »product« the consumer is finally supplied with. When she gets a tangible copy the first alternative applies, whereas when she gets an electronic file the whole process is considered an electronic distribution.Such electronic distribution is, albeit nowadays the state-of-the-art method of document delivery, restricted by the new law in many ways. The libraries may only distribute graphic files (facsimiles) that cannot be used for full text search or copy and paste. Furthermore the files may only be transmitted to users who intend to use the articles for scientific purposes or in lectures. Therefore the libraries have to separate between different user groups (or even their purposes). Private users for example may only be supplied by fax or email.Most far-reaching is another restriction of the right to deliver copies electronically: Art. 53a para 1, sentence 2 UrhG exempts the delivery of articles which the publishers themselves offer in electronic form from the scope of the exception. The intention is to protect the publishers' business models against the offers of public libraries which are generally much cheaper. This competition protection clause prevents public delivery services to provide the complete repertoire of literature without (at least additional) licence acquirement. However it is itself restricted by two additional requirements. Firstly, the »commercial offer« must be »obvious« to exclude the statutory exception, i.e. registered in a central information database. Secondly, commercial offers exclude competitive library offers only if they are made under »reasonable conditions«. The definition of the term »reasonable conditions« in Art. 53a UrhG is markedly vague. Which offers are »reasonable« in terms of price, availability and other aspects cannot be figured out without detailed legal and economic examination. Hence this aspect lacks practicability, even more so since the interpretation depends on the particular circumstances of the case and therefore, in principle, requires a particular assessment in each individual case. Im »Zweiten Gesetz zur Regelung des Urheberrechts in der Informationsgesellschaft«, dem so genannten »Zweiten Korb«, hat der deutsche Gesetzgeber eine neue Schrankenbestimmung für den Kopienversand durch öffentliche