The Digital Realm - Lending of e-Books is Allowed under the Rental and Lending Right Directive, Says AG Spuznar

The days of the library seem to have been over for some years now, with e-book sales reaching £2,1 billion in 2015, and most young people are blissfully unaware of that wonderful place where books are free and (nearly) endless. While modern media consumption has clearly been a catalyst in this paradigm shift, e-lending was touted as the next big thing, especially since many consume their literary share exclusively in electronic form. With this change in consumption, the question of whether libraries can indeed lend out electronic copies of books was dealt with by the Advocate General prior to a ruling by the CJEU.

The case of Vereniging Openbare Bibliotheken v Stichting Leenrecht involved two stakeholders in relation to the above question. VOB are an association representing of all of the public libraries in the Netherlands, who argued that electronic lending should apply equally to physical lending under Netherlands' (and EU) law, specifically through the Rental and Lending Right Directive. The other side, Stichting Leenrecht, are a collection society for authors in relation to the public lending derogation under Article 6 of the Directive, and argue that e-lending does in fact fall under the scope of the lending right. According to VOB, this lending would be done similarly to physical copies, i.e. one copy for one user, making it inaccessible to others during this period, therefore being covered by the derogation; a position that Stichting Leenrecht contest.

The first question, summarized by the Advocate General, asked whether Article 1 of the Directive "...is to be interpreted as meaning 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 lending right enshrined in [the Article]".

Will was thrilled about the opinion for the sake of his arms

Advocate General Spuznar discussed the evolution of the technology after the setting of the legislation (having its origins in legislation from 1992), and saw that "...at that time, the EU legislature did not contemplate the inclusion of the lending of electronic books within the concept of lending of Directive 92/100, if for no other reason than because the technology for commercially viable electronic books was then only in its infancy". Clearly, the Advocate General's position here is one of pragmatism, and this writer concurs with his thoughts here, since technological evolution, even when not contemplated by the legislature at the time, should be included when possible. His continued, in a similar vein to this writer's thoughts, that the courts should "...take[] into account developments in technology, markets and behaviour and not to fix such acts in the past by adopting too rigid an interpretation... An interpretation of this kind, which might be described as ‘dynamic’ or ‘evolving’... [and is important] particularly in fields where technological progress has a profound effect, such as copyright". His opinion concludes that the borrowing of library books in electronic form illustrates the phenomenon perfectly, and a looser, inclusionary interpretation would lead to a better enforcement of the law in the new technological world. This adaptation is also in the interests of the authors and the public at large in being able to access culture and scientific knowledge more readily.

In short: "...Article 1 includes the making available to the public of electronic books by libraries for a limited period of time".

The Advocate General then discussed the wording and structure of the Directive, quickly dismissing any claim as to it being contrary to the Directive in allowing for electronic books from benefitting from the derogation. Similarly, he addressed possible issues with the copyright system in Europe and international obligations, concluding that there are no issues with neither provisions in the light of the above. 

In answering questions 2 to 4, he determined that should a Member State wish to introduce provisions enshrining the derogation in Article 6 in national law, they, however, are free to preclude the derogation from applying prior to initial circulation by the author and/or without proper consent from the same as to the lending of a given work. This cannot unduly restrict the derogation, but can be applied within reason.

The opinion in the case, as stated above, is one of pragmatism and reason, allowing for the development of technologies and new ways of distributing lawful copies to those who otherwise might not be able to access them. New technologies are being created all the time, and the law's rigidity would only deter the proper application of those technologies, often to the detriment of the general public. We remain to see whether the CJEU follow the Advocate General's opinion, and this writer for one, hopes they do.

Source: IPKat