The lending of electronic books is comparable to the lending of traditional books and falls to be regulated by the same laws, Advocate General (AG) Szpunar has recently opined.
The rental and lending of material which enjoys copyright is regulated by an EU directive which seeks to harmonise member states’ laws on the matter. This directive provides that the exclusive right to authorise or prohibit the rental and lending of material which enjoys copyright, including books, belongs to the author of the work. Member states are, however, entitled to derogate from such an exclusive right in respect of public lending, provided that authors obtain, at least, fair remuneration.
The law of the Netherlands transposing this EU directive does not regulate the lending of electronic books. An association of national public libraries claimed that digital lending should also fall to be regulated by the same legal regime laid down for the lending of paper books so that authors may obtain fair compensation at all times. To this end, it brought an action against a foundation entrusted with collecting the remuneration due to authors, seeking a declaratory judgment to that effect. The national court seized of the dispute filed a preliminary reference to the Court of Justice of the European Union (CJEU) requesting guidance on the applicability or otherwise of the provisions of the EU directive.
Digital lending triggers off the same rights for authors of works enjoying copyright as the lending of printed works
In his opinion, AG Szpunar observed that the making available to the public, for a limited period of time, of electronic books by public libraries, falls within the scope of the aforementioned EU directive. He noted that the lending of electronic books was not included within the directive’s concept of ‘lending’ simply because the technology relating to electronic books was only in its initial stages, at the time when the directive was enacted. The lending of electronic books should therefore be considered as the modern equivalent of the lending of printed books.
The AG pointed out that the main purpose of copyright is to protect the interests of authors. He noted that currently libraries often lend books in electronic form under licensing agreements concluded between libraries and publishers. Such agreements are mainly of benefit to publishers or other intermediaries in the electronic book trade while authors very often receive no adequate remuneration. If digital lending were to be considered as falling within the scope of the EU directive, authors would be able to claim and receive fair remuneration whenever digital lending of their works takes place.
The AG concluded his opinion by suggesting that, when introducing the exception for the public lending of electronic books in line with the provisions of the EU directive, member states may require that such books should first have been made available to the public by the right holder or with his consent and that they are obtained from lawful sources.
The Maltese Copyright Act endows authors of literary works in all cases with the exclusive right to authorise or prohibit the rental and lending of their works either in its original form or in any form recognisably derived from the original. The AG’s opinion, though still subject to confirmation by the Court, clarifies that digital lending triggers off the same rights for authors of works enjoying copyright as the lending of printed works.
mariosa@vellacardona.com
Mariosa Vella Cardona is a freelance legal consultant specialising in European law, competition law, consumer law and intellectual property law.