Keizerlijke bibliotheek en rariteitenkabinet

CJEU on e-lending: The right to lend books includes the right to lend electronic books.

Yesterday the Court of Justice of the European Union delivered good news in a case that that eagerly watched by Librarians across the Europeana Union. In its judgement in the case VOB vs Stichting Leenrecht (C-174/15 – press release here) the court ruled that rental right and lending right directive also covers e-lending. This is good news for libraries and their users as this means that (within certain limits) libraries can lend out e-books on the same legal basis as they lend out paper books. Prior to this judgement it was generally assumed that e-lending was not included in the scope of the rental right and lending right directive and as a result public libraries wishing to lend out e-books had to conclude licenses with publishers in order to do so.

Yesterday’s judgement came out of a reference to the CJEU in the context of proceedings brought by the Association of Dutch Public Libraries (VOB) which held the view that libraries are entitled to lend e-books included in their collections according to the principle “one copy one user”. This view was not shared by the Dutch government which has passed legislation based on the premises that the digital lending of electronic books does not come within the scope of the exception provided by the rental right and lending right directive.

The VOB wants libraries to allow users to download an electronic copy of a work included in the collection of a library while ensuring that  – as long as that user can access that copy – it is not possible for other library users to download another copy. At the end of the e-lending period, the copy downloaded by the first user would become inaccessible, and as a result another lender can download a separate copy.

To get legal certainty regarding its e-lending plans the VOB the a procedure against Stichting Leenrecht (the non-profit organisation that collects the lending rights payments from libraries). The Dutch court then referred to central question of this case (“does electronic lending fall within the scope of the rental and lending rights directive?”) to the CJEU which has now been answered by the court:

[the lending and rental rights directive] must be interpreted as meaning that the concept of ‘lending’, within the meaning of those provisions, covers the lending of a digital copy of a book, where that lending is carried out by placing that copy on the server of a public library and allowing a user to reproduce that copy by downloading it onto his own computer, bearing in mind that only one copy may be downloaded during the lending period and that, after that period has expired, the downloaded copy can no longer be used by that user.

This is a big win for the libraries and their users both in a very concrete way (there will be more e-books to lend as a consequence) but also in a more abstract way: with this judgement the court establishes the principle that exceptions to copyright (such as the lending right) must be interpreted in light of technological developments. This is a very important principle especially in a time where the EU legislator seems poised to address technological progress mainly with the interests of rights holders in mind.

As welcome as the judgement is it also has its limitations. The court’s judgement makes it clear that e-lending is only allowed on the basis of a one-reader-per-copy basis. While this limitation makes sense in line with the court’s reasoning it does not necessarily makes sense from an operational or technological perspective. It also leaves unanswered questions with about how libraries should deal with lending out electronic copies of books which cannot purchased as e-books for example because they are out of commerce.

Regardless of this the Vereniging Openbare Bibliotheek and everybody working with them deserves a lot of credit for dragging copyright a little bit further into the digital age.

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