Print of The Inside of the Public or Bodleian Library in Oxford from the East

The European Roots of Controlled Digital Lending

Libraries have long played a crucial role in ensuring broad public access to knowledge and culture. So as more and more of our lives take place online, it is important that libraries are able to play their traditional role there. This concept is at the heart of our Policy Recommendation #10: libraries should be enabled to fulfil their mission in the digital environment.

In order for libraries to do so, they need to be able to perform their usual functions–such as the preservation and lending of books and other materials–digitally. One way to do that is through controlled digital lending (CDL). With CDL, libraries own–rather than licence–digital copies of their collections, so they can preserve them in digital format and lend them to their patrons online. Of course, any such lending must be controlled: libraries can only lend as many digital copies as they have bought and paid for (such as by buying and digitising a physical copy), and they must take steps to ensure that this 1:1 lending restriction is controlled by digital means (generally, by using digital rights management). But with these controls in place, CDL is the digital equivalent of traditional library lending; nothing more, nothing less.

Many of the world’s largest publishers are opposed to CDL, and have recently attacked it–such as in their lawsuit against Internet Archive in the United States–as a legal theory “manufacture[d]” in the US “[a]round 2018.” That is not correct. In fact, while the term “controlled digital lending” may be of more recent vintage, this kind of “eLending” has deep roots in European law and practice.

While rental and lending rights are not established in the United States or many other countries, such rights have been a feature of European Union law since 1992. And they were a part of various member state laws for decades prior–by some accounts, they have been under discussion in Europe for over one hundred years. Over this time, careful and sustained attention has been given throughout Europe to the rights of libraries, authors, publishers, and the public. This attention has been manifested in a variety of legislative approaches to public lending over a series of decades, and it has continued into the modern era, as the original rental and lending directive was updated in 2006, and its application to the digital environment was repeatedly examined by the Court of Justice of the European Union. As a result, one should not be surprised to find that the law and policy of library lending in Europe has been carefully considered and refined–including with respect to digital lending practices like CDL.

One obvious example of this is the case Vereniging Openbare Bibliotheken v. Stichting Leenrecht, which arose out of a referral from the Rechtbank Den Haag in the Netherlands. In this case, there was a dispute about the extent to which the Dutch public lending scheme included e-books, which led to a 10 November 2016 judgement from the CJEU that: “the concept of ‘lending’, within the meaning of [certain provisions of EU law], 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 downloading during the lending period and that, after that period has expired, the downloaded copy can no longer be used by that user” (emphasis ours). In other words, the case clearly recites-indeed, approves of–the concept of controlled digital lending under European law, well before the supposed 2018 “manufacture” of the concept in the United States.

Of course, CDL-style “eLending” did not emerge fully formed from the CJEU in 2016–it has a much older pedigree. Librarians, policymakers, and others have been studying a variety of approaches to digital lending for well over a decade, and continue to do so today. A clear example of this can be found in the European Parliament’s 2015 report on the “Harmonisation of certain aspects of copyright and related rights” (the so called “Reda report”), which

Recognises the importance of libraries for access to knowledge and calls upon the Commission to assess the adoption of an exception allowing public and research libraries to legally lend works to the public in digital formats for personal use, for a limited duration, through the internet or the libraries’ networks, so that their public interest duty of disseminating knowledge can be fulfilled effectively and in an up-to-date manner; recommends that authors should be fairly compensated for e-lending to the same extent as for the lending of physical books according to national territorial restrictions;

And of course, libraries and library lending trace many of their origins back thousands of years on the European continent–well before the invention of copyright itself. Then, as now, it is copyright that has had to accommodate the libraries to ensure they can perform their important public functions–not the other way around.

Een triton (meerman: half vis, half man), ten halven lijve, met opvallende vinnen bij de oren, blazend op een schelp.
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