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Posted in Copyright, Digital Single Market (EU) Eva Vonau

Advocate General comments on lending of e-books

Will the lending of e-books be governed by the same rules as the lending of “classic” printed books? This is an important question that public libraries and others are eagerly trying to get answered in Europe. The Court of Justice of the European Union (CJEU) currently is sitting over a case that deals with exactly this query. At the heart of the topic is the fact that lending e-books requires an act of reproduction, which does not occur when lending a printed book. In consequence, it is argued that the library requires a specific license from the right holder to include e-books in its public lending scheme. However, in his recent opinion that is now under review by the CJEU, the Advocate General Maciej Szpunar calls for a more progressive approach by suggesting a “dynamic” and “evolving” interpretation of the applicable European provisions (see opinion of 16th June 2016, Case Ref.: C-174/15).

Background

The dispute that led to the request as submitted by the Dutch court arose between the library society Vereniging Openbare Bibliotheken (VOB) and the collecting society Stichting Leenrecht. In the Netherlands, public libraries are required to obtain a license for lending e-books. VOB aims to introduce a “one copy one user” system. Under such scheme, libraries would be allowed to create and provide a digital copy of an e-book (Reproduction A) on their library server. The library user borrowing the e-book would be granted the option to download a digital copy (Reproduction B). Upon expiry of the lending period, the Reproduction B would become invalid and not accessible anymore. Moreover, during the time that the e-book has been lent out, no other library user could download a copy of the same e-book.

From a legal perspective, the dispute rests on the interpretation of Articles 1(1), 2(2) (b) and 6(1) of the Directive 2006/115 on rental right and lending right and on certain rights related to copyright in the field of intellectual property. According to those provisions, Member States may establish a right for public libraries to lend books without the prior consent of the right holder. In exchange, the right holder ought to receive a fair compensation for the use being made of its book.

There is no dispute that the aforementioned provisions cover “classic” books. Whether e-books also fall within their scope is yet to be decided. The CJEU will now resolve the issue.

The Opinion

The first and crucial question in the analysis is whether Article 1(1) of Directive 2006/115, read together with Article 2(1)(b), means that when public libraries make e-books available to the public, for a limited period of time, such activities fall within the scope of the lending right enshrined in Article 1. The Advocate General clearly responds to the first question in the affirmative due to following reasons:

In general, Maciej Szpunar takes the position that in today’s digital world we need to apply a “dynamic” interpretation of the Directive 2006/115. The Directive dates back to 1992 and has last been amended in 2006 due to lending DVDs, CDs and cassettes. Thus, the provisions are fairly outdated when looking at the digital evolution since then. According to the Advocate General, lending e-books is a “phenomenon that actually exists” and that has to be seen as the modern equivalent of lending printed books. Therefore, he calls for the provisions here at issue to be interpreted as also covering e-books despite the legislator back in 2006 not having considered them.

Moreover, the Advocate Generalemphasized that applying the Directive to e-books would also benefit the authors. They would receive a fair compensation without being bound to rely on licence agreements with publishers or other intermediaries. To Maciej Szpunar‘s understanding, authors most often do not adequately participate in license fees relating to the lending of e-books.

Further, the Advocate General stresses the great importance of public libraries for cultural preservation and dissemination. Paying high prices for e-book licenses is not deemed feasible, especially for libraries operating in disadvantaged areas.

Maciej Szpunar eventually analyzes whether his approach of a “dynamic” interpretation of the Directive would be consistent with the wording of the respective provisions and coherent with the European copyright scheme as a whole including International treaties. His conclusion is that indeed his approach would work within the overall copyright framework. In particular, regarding the act of reproduction involved in the lending of e-books, he deems the private copying exception provided for in Article 5(2)(b) of Directive 2001/29 as adequate basis and justification.

Comment

The opinion that the Advocate General has now published deals with the matter in extensive detail which as such is positive. The approach of a “dynamic” interpretation of the Directive 2006/115 resonates. Laws generally need to be construed in the light of the current times, however not without consideration of what the aim and purpose of the respective provision was and is. What the CJEU will need to do is carefully assess whether the publishers’ position is adequately balanced in Maciej Szpunar‘s concept. Authors and publishers do differ in their interests and both have a share in the composition of an e-book. However, one can see parallels to the case of TU Darmstadt and the installation of electronic terminals within libraries which the CJEU ruled upon in 2015 (see our blog post). Also, the judges will have to consider the Commission’s Digital Single Market Strategy which clearly aims to pave the way for easier access to digital works.