by the fact that pursuant to article 1(2) of the Directive, which leaves the provisions of earlier directives unaffected, the limitation of article 5(2)c) of the Information Society Directive does not apply to databases.[1] This may create severe practical obstacles for the daily operations of libraries.
With respect to the making available of the digital archives, article 5(3)n) of the Directive states that Member States may adopt limitations on the reproduction and the communication to the public rights for “use by communication or making available, for the purpose of research or private study, to individual members of the public by dedicated terminals on the premises of establishments referred to in paragraph 2(c) of works and other subject-matter not subject to purchase or licensing terms which are contained in their collections”. Not only is the implementation of this provision, just like the previous one, not mandatory, but even where it has been implemented, its scope remains extremely narrow: a work may only be communicated or made available to individual members of the public if each patron establishes that the use is for his exclusive research or private study. The works may only be communicated or made available by means of dedicated terminals on the premises of non-commercial establishments, which excludes any access via an extranet or other protected network connection that users can access at a distance. Moreover, this provision only finds application insofar as no purchase or licensing terms provide otherwise, which is in practice rarely the case. As the following remark illustrates, this provision was met with much scepticism within the library community:
While this is a laudable regulation, it is incomprehensible that this exception is tied to “dedicated terminals on the premises” of named establishments and to the condition that these works are not subject to purchase or licensing terms. (…) The second condition is another example of the lack of balance in the Infosoc Directive. By allowing rights holders to contractually evade any exception, it grants them unlimited exclusive rights in the online realm. This condition prevents public libraries from fulfilling their public task of making published works available to their users without prejudice to their ability to pay their market price.[2]
In countries that chose to implement it, article 5(3)n) was transposed almost word-for-word in the national legislation. Several Member States
have, however, decided not to incorporate this article into their law; the
