10 November 2016Copyright

E-books can be lent in same way as traditional books, says CJEU

The lending of an electronic book (e-book) can be treated in the same way as that of a traditional book under certain conditions, Europe’s highest court said today.

The Court of Justice of the European Union (CJEU) was ruling on Vereniging Openbare Bibliotheken v Stichting Leenrecht, referred by the District Court of The Hague, in the Netherlands.

Currently in the Netherlands, the lending of e-books by public libraries doesn’t fall under the public lending regime applicable to traditional books. Libraries make e-books available to the public via the internet, on the basis of licensing agreements with rights owners, said the court’s press release.

Vereniging Openbare Bibliotheken, an association to which every public library in the Netherlands belongs, brought an action against Stichting Leenrecht, a foundation that collects royalties owed to authors and other rights owners.

Vereniging had taken the view that “the regime for traditional books should also apply to digital lending”, so it brought the claim against Stichting, seeking a declaratory judgment to that effect.

According to the release, the action concerned lending under the ‘one copy, one user’ model, where users can download only one copy onto their own computer during the lending period. Once the period has expired, the downloaded copy can no longer be used.

In the judgment, the court noted that there is “no decisive ground” allowing for the exclusion of the lending of digital copies and intangible objects from the scope of Directive 2006/115/EC.

“That conclusion is, moreover, borne out by the objective pursued by the directive, namely that copyright must adapt to new economic developments,” it said, adding that excluding digital lending from the scope “would run counter to the general principle that a high level of protection is required for authors”.

The CJEU also explained that member states may lay down additional conditions “capable of improving the protection of authors’ rights beyond what is expressly laid down in the directive”.

Dutch legislation requires that a digital copy of a book made available by a public library must have been “put into circulation by a first sale or other transfer of ownership of that copy in the EU by the holder of the right of distribution to the public, or with that holder’s consent”.

Where the e-book has been obtained from an unlawful source, the CJEU held that allowing the lending of such a copy would be “liable unreasonably to prejudice copyright holders”. It held that the public lending exception doesn’t apply here.

A spokesperson for Vereniging said the decision is a “small step on the way to providing better access to e-books through public libraries”.

A press release from the association added that as a result of the decision, “little by little the contours of updated copyright are emerging”.

“This will enable public libraries to continue to perform in the digital world the social role that libraries have in society,” it said.

Arjen Polman, a manager at Stichting, told WIPR that "we didn’t take a stand at all, not before the case, not at the local court, nor in Luxemburg. The only remarks we made were technical issues".

He added: "We represent every right holder whose works are being lent out by libraries; for books that’s writers, publishers, illustrators, translators. But also music producers, composers and musicians (for music CDs), film producers, screenwriters, actors (for DVDs and videos). We collect the remuneration directly from libraries (so not from the government), and pay it on to the different rights holders organisations.

"These organisations were the ones who took a position in this case on behalf of their members".

Frans de Voldere, copyright attorney at Netherlands-based law firm Blenheim, said: “This decision of the CJEU means that libraries can (eventually) also lend e-books to their customers, under the same conditions as paper copies. Understandable, because it meets current demand in a reality that has progressed faster than legislation.

"It's bad news for publishers: their current exploitation models for lending e-books need to change and also there will be a significant increase of e-books offered through libraries."

He added: "It's obviously good news for libraries, but also for buyers of e-books; the decision probably also means that buyers of e-books not merely get a licence, but instead the ownership, enabling them to resell as they please.

"It’s virtually impossible to check whether the resold e-book was copied. This is another challenge for suppliers of online content," he added.

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