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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?

My understanding is "yes":

  • The scientific monograph is protected by copyright.
  • Downloading copyrighted material without the permission of the copyright owner has been known to be illegal for a long time.
  • 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 became illegal in April 2017.
  • Motivation for pirating was not mentioned and so should not matter.

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 here and here). Their argument hinges on:

  • Scientific research isn't the same as other copyrighted material.
  • Section 60c of the German law 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.

I would like to resolve: is it legal to download the book or not?

The setting is the EU, and if the country within the EU matters, the country is Germany.

  • "People tell me this is legal" - In what situation? Section 60c defines a 15% limit on scientific information "made available to the public." Is the e-book you are downloading made available to the public? Or did you buy the book legally and are personally copying up to 75% of it for personal research? – Brandin Nov 20 '18 at 6:06
  • @Brandin no and no. In this hypothetical scenario, I found the book at some website and downloaded it. The book is not otherwise available free of charge. However, I'm only using the book for personal research. – Allure Nov 20 '18 at 6:08
  • If the book is on a Web site that means it is available to the public, so section 60c does not seem to give you any ground for argument here. It is simply not allowed by any legal theory. – Brandin Nov 20 '18 at 6:10
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    By the way, with "available free of charge" I think you are confusing different things. If I have a legally obtained copy of the book you want (e.g. a print) and I make it available to you "free of charge", that is not a violation. Copyright protects copying, not "giving things away for free of charge" or anything like that. However if I copy my version without permission and give you the copy, that is not allowed. – Brandin Nov 20 '18 at 6:15
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    A key question that thisd question does not address: Was the book posted to the website from which it might be downloaded with the permission of the copyright owner? If not, the download cannot be legal. If so there is an argument that the owner is implicitly permitting downloads, and the private copy exceptuon might apply. – David Siegel Aug 17 at 16:58
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Summary

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

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 phoog's answer.

Downloading as an act of reproduction

As a literary work, a scientific monograph is given protection against unauthorized acts of reproduction by the EU's Copyright Directive in Article 2. This includes an end user downloading from the internet.

While it was surprisingly difficult to find an authoritative direct statement to that effect (most sources just assume this to be true), the Filmspeler ruling contains such language in paragraph 22 and paragraphs 69-72.

The EU's private copy exception

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

(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, [...1]

While this provides a baseline for private copy, in order to fully understand its scope, we must examine the landmark ACI Adam 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).

Additionally, according to analysis 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.

Following just the baseline EU private copy exception, the download specified in the question is legal provided that the source is lawful.

Germany's private copy exception

Germany transposes the baseline EU private copy exception into section 53(1) of its copyright act (German link, footnotes are mine):

(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 model2 or a model which has been unlawfully made available to the public3 is used for copying. [...]

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 books, unless they've been out of print for 2 years.

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

Footnotes

  1. 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.

  2. The edges of "obviously unlawful" are a little fuzzy. In ACI Adam, it was determined at the EU level that the private copying exception must 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 appear to be lawful so there's still hope for the German law. This is (debatably) the approach that was taken in Filmspeler. However, that ruling didn't address Article 5(2)(b), but Article 5(1), the temporary reproduction exception. If you're interested, I have a lengthy answer discussing the Filmspeler ruling.

  3. 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 what the Justice Ministry thinks (German link).

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 chat the original posting generated.

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    This answer regards personal use regardless of the nature of such use and of the distributed material. Specifically, it doesn't regard academic work, and use for research. I also wonder about "obviously-unlawfully-produced" thing. – einpoklum - reinstate Monica Nov 20 '18 at 22:51
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    @Aaron I do not see the importance of that distinction, and I doubt that courts would see it that way. – phoog Nov 20 '18 at 23:31
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    @Aaron to elaborate on court interpretations, it would be equally valid (if not more so) to view the downloader as issuing an instruction to a machine that causes the machine to make a copy and sent it to the downloader. That the machine was set up by someone else doesn't absolve the downloader from responsibility for having commanded the machine to create and send the copy. – phoog Nov 20 '18 at 23:59
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    @Allure Sorry for the confusion, its not a technical term, I just meant general in the sense that nature of usage doesn't matter. – DPenner1 Nov 21 '18 at 0:24
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    @DPenner1 Thanks for the effort you've put into the answer. Correct me if I'm wrong - as I understand it, this is legal if and only if 1) the book's been out of print for at least 2 years 2) the source I'm copying from obtained the book legally 3) personal use only. So under the assumptions in the OP (at least the implicit ones), downloading the ebook is indeed illegal. – Allure Nov 21 '18 at 4:03
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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.

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

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.

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.

  • Are you saying that it comes down to whether the website where I got it from obtained the ebook legally, and if the answer is "yes" then I am not breaking laws; on the other hand if the answer is "no" then I am doing something illegal? – Allure Nov 20 '18 at 5:29
  • @Allure no. It is not enough that the source of the e-book obtained it legally. You must be authorized to make a copy of the e-book. If the web site obtained it.legally but is not authorized to redistribute it or to authorize you to make a copy then your download would be a violation (unless covered by some exception in the law that hasn't yet come under discussion). – phoog Nov 20 '18 at 5:34
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    @Allure notice phoog's point about "The website cannot authorize you to download the file. You are therefore probably also at fault if you do, but it's a separate question." That is the crux here. You have worded your question to imply that the law somehow applies to downloading, but it is talking about copying material, and therefore it could possibly be illegal but not for the reasons provided in the question, not unless the EU has also declared legally that downloading constitutes the act of creating a copy by the downloader. – Aaron Nov 20 '18 at 23:08
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    @Aaron I don't think there's much question about whether downloading constitutes the creation of a copy. It does. My point is that if you're asking about whether the website obtained the copy legally then there are two distinct copies whose legality is in question: the one on the website and the one created by the downloader. There's also the question of whether it is legal for the website to publish its copy (make the copyright available for download). It's really impossible to know the answer without knowing the license terms and the purpose of the copy. – phoog Nov 20 '18 at 23:18
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    @Allure If I buy a CD from a record store legally and put it on my website where millions download it, or if I steal a CD from a record store illegally and put it on my website where millions download it, it doesn't make any difference to the downloaders (it's equally illegal), and if I get caught then it makes very little difference to me. – gnasher729 Nov 20 '18 at 23:51
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A resolution is impossible at this time

Disclaimer: I am not familiar with German or EU law particularly (but am familiar with some law in other countries.)

It appears 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).

Now, the German legal system is a "continental law" or "civil law" system, 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.

More specifically, there are considerations such as:

  • Whether downloading (as opposed to uploading to someone else) constitutes making a copy of a work.
  • How the law applies in a situation where copies have been circulated en-masse and are freely available regardless of a single additional reproduction.
  • Whether posting academic work onto the web for promoting academic studies, without license, is obviously-illegal (in the context of the personal use clause).
  • Whether the personal use clause is not to be combined with Section 60c(2).
  • Whether the inability to download "75% of the book" does not legalize the download of the entire book.
  • 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.
  • Whether it is constitutional to prevent a person from what is essentially very much like "picking up a scientific study book and reading it". Forbidding this might violate constitution article...
    • 1(1), human dignity?
    • 2(1), free development of personality?
    • 5(3), free science and research?
  • et cetera, et cetera.

which have not been presented and ruled on in a court of law, in this context. And - perhaps for good reason.

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