On 24 September, COMMUNIA hosted the third Salon of 2025 on the right to e-lend. The event brought together experts to examine the legal obstacles standing in the way of digital lending and discuss policy solutions for empowering libraries in the digital environment. A video recording of the event is now available through Vimeo.
Background
Libraries have long served as gateways to knowledge and culture. But in today’s digital world, they face new and pressing challenges. Unlike physical books, digital titles cannot be obtained under fair, consistent, and predictable conditions. The lack of a clear legal framework for e-lending—both at the EU level and within Member States—makes it increasingly difficult for libraries to fulfill their public mission.
The experts
To explore these issues, we convened a salon moderated by Peter Routhier (Internet Archive), bringing together three leading experts:
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Konrad Gliściński (Jagiellonian University Kraków / Centrum Cyfrowe)
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Martin Kretschmer (University of Glasgow)
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Teresa Nobre (COMMUNIA)
The speakers shared insights from two recent studies on e-lending in Europe and shed light on problematic industry practices shaping the sector.
Secure digital lending as the solution?
The discussion opened with Konrad Gliściński, who presented findings from his recent study on e-books and secure digital lending in Europe, commissioned by Knowledge Rights 21. The study outlines a possible path for libraries: secure digital lending that does not rely on restrictive or unfair licensing terms. Instead, this model allows libraries to digitise a physical copy they already own and lend it in digital form on a one-copy-one-user basis.
While the study confirms that existing CJEU case law supports secure digital lending in principle, libraries have largely refrained from adopting it in practice. The reason is simple: public institutions are inherently risk-averse, and without a clear, harmonized framework, the interpretation of CJEU rulings does not provide the legal certainty they need. As a result, libraries face a stark choice—either accept costly licenses, often on unfavorable terms, or, if such licenses are unavailable, forgo offering the material digitally altogether.
A question for competition law?
Next, Martin Kretschmer presented insights from an upcoming CREATe Centre study, commissioned by Knowledge Rights 21 and due for release in October (Update: the study E-books: Evidence and analysis of e-lending markets in Europe is now available). The study examines e-lending markets through the lens of competition law and identifies three main challenges for libraries:
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Market structure: limited bargaining power when negotiating terms.
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Licensing practices: including outright refusals, bundling, and sudden withdrawals.
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Pricing: high costs combined with a lack of transparency.
While competition law offers some avenues for addressing these issues, the study stresses its limitations: proceedings are complex, slow-moving, and uncertain in outcome. Ultimately, the authors conclude that copyright law is likely the more effective tool for shaping fairer conditions for libraries in the digital lending market.
More evidence of unfair licensing practices
Finally, Teresa Nobre presented COMMUNIA’s recent report on unfair licensing practices in the library sector. The report finds that there is a clear imbalance in bargaining power in licensing negotiations between publishers and libraries seeking to acquire digital resources, such as e-books, e-journals and databases under fair and reasonable terms. In particular when it comes to the license-based model, publishers have gathered excessive control over access to and use of published content, allowing them to unilaterally determine access models for libraries and impose far-eaching conditions on the use of materials. One of the more egregious examples of these practices is the use of choice of law clauses which place an agreement outside of EU law jusrisdiction and, as a result, override uses permitted by copyright exceptions under EU law.
A way forward
As Martin Kretschmer emphasized during the discussion, policymakers face a fundamental choice: should libraries be able to offer digitally the same services they have long provided in the physical world?
Policymakers need to decide: do they want libraries to build sustainable digital collections, or not? I think that’s the fundamental question. They need to decide that. Publishers have every right to make money, and what I’m saying is not anti-publisher at all. But libraries have a function in society. There are fundamental rights reasons, but these are also embedded in the rationales for the e-lending right and in exceptions across various directives. In the digital sphere, however, the way case law has evolved means these rights cannot be exercised. And that needs to be understood. Unless you can build a digital collection, you can’t lend.
Throughout the discussion, the panelists outlined a range of possible solutions. Some focused on practical steps, such as national library associations developing guidelines for implementing secure digital lending. Others pointed to policy interventions. There was broad consensus, however, that if policymakers are serious about solving the issue, more decisive action is needed: namely, a regulation that centers the needs of public institutions and establishes a clear e-lending exception, while also introducing safeguards against contractual override and against circumvention through choice-of-law clauses.
