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Digital libraries victory

While lending libraries have been key in providing public access to information and knowledge for centuries, in this day and age of paperless book, libraries have tried to keep up with the increasingly widespread digital phenomenon. Free internet access and digital lending of e-books have replaced bookshelves and transformed libraries into 21st-century repositories of knowledge and information.

The legal setting to public lending is set out in the 2006 directive.  In terms of this directive, member states must grant authors of copyrighted works the exclusive right to authorise or prohibit the rental or lending of originals and copies of their works.

Member states are allowed to qualify this right in relation to public lending, as long as the authors obtain remuneration for that lending. The directive does not lay down any parameters about the level of remuneration, leaving that to be regulated at national level.

In this context, the Court of Justice of the European Union (CJEU) was requested to provide guidance to the District Court of The Hague in connection with a dispute involving the Association of Dutch Public Libraries and Stichting Leenrecht, an organisation that collects lending right payments from libraries.

The Dutch association argued that the lending of printed and digital copies of books should both be treated the same way. Some Dutch libraries adopted an unlicensed e-book rental system that allowed a user to remotely download an e-book for a specific period of time. As with conventional lending, for the duration of that lending period, no other users could access that digital copy. Following the end of the lending period, the system automatically shuts off access to the borrower and the digital copy is once again available for downloading by other users. This system essentially mimics standard lending from brick-and-mortar libraries.

Stichting Leenrecht, on the other hand, argued that e-lending was not included in the scope of the directive and consequently the Dutch public libraries should be required to conclude licences with publishers before they lend out digital books.

The question put forward to the Luxembourg court essentially concerned the interpretation of the concept of lending, and whether the lending of digital copies fell within the 2006 Directive which did not differentiate between physical books and digital books.

Prior to judgment, the Advocate General of the court published his opinion on the matter, advised in favour of a dynamic approach to the provisions of the 2006 directive, opining that the lending of paperless and printed books should be treated alike when the digital lending system was identical to the physical one.

The CJEU approved the Advocate General’s interpretation and ruled that the 2006 directive also covers digital lending under certain conditions. The court observed that the exceptions to copyright, including the public lending exception, should be construed in light of technological advances.

The court, however, clarified that e-lending would only be permissible if it had similar characteristics to the lending of printed books. Therefore, public libraries wishing to offer a digital book rental system need to mirror the process adopted by traditional libraries by applying the one-copy-per-user model and disallowing multiple access to the same digital copy at the same time.

Furthermore, the Luxembourg court established that if an electronic copy of a book had been obtained from an unlawful source, lending of such a copy would prejudice copyright holders and in such a case, the library would not be able to benefit from the public lending exception.

This landmark judgment allows public libraries to bring themselves up to speed with the digital world we live in.

[email protected]

Josette Grech is adviser on EU law at Guido de Marco & Associates.

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