Is the Public Lending of E-books Similar to Lending Traditional Books?
23 September 2016
Whether or not the public lending of e-books is treated, in EU copyright law, in the same manner as the public lending of traditional books has been a relatively contentious topic among EU Member States. This is an important question as there are certain rules, benefits and obligations set out in EU copyright law regarding the rental and lending of copyright works, particularly for the authors of those works. These rules were originally set out in Council Directive 92/100/EC but were codified in 2006, with minimal changes, by Directive 2006/115 (the “Directive”). We take a look at a recent case which may clarify the application of these rules.
The Directive provides that Member States must provide for a right to authorise or prohibit the rental or lending of originals and copies of copyright works. The exclusive right to authorise or prohibit rental and lending belongs to the author of the work.
Member States may deviate from this position in relation to public lending, provided that authors, at least, obtain remuneration for that lending. Member States are free to determine the level of remuneration taking into account their cultural promotion objectives.
If the public lending of e-books does not fall within the Directive, the consequence is that libraries are not entitled to lend these books without appropriate licensing arrangements and authors are not entitled to remuneration for such lending.
This case originates from a dispute before the Dutch courts as to whether a library's e-book rental system should fall within the Directive. The system allowed for e-books at a library’s disposal to be downloaded by a user for a lending period. During the lending period, those e-books could not be accessed by other library users. After the lending period, the e-book automatically becomes unusable for the borrower and the e-book then be used by other borrowers. The case was referred to the EU’s highest court (the CJEU) for determination. The Advocate General, an independent advisor to the CJEU, provided an initial opinion on the case.
Advocate General Szpunar was of the view that the e-books were not within the contemplation of EU lawmakers back in 1992. One question, therefore, is whether these European rules on rental and lending could be interpreted in 2016 to include e-books. The Advocate General believes they should, on the basis that the law be given a ‘dynamic’ or ‘evolving’ interpretation, that this would be consistent with the lawmakers’ intentions when adopting EU law and that it is a case of a modern equivalent of the lending of printed books. The Advocate General took the view that such an interpretation of lending is not contrary to the objective or wording of the Directive and was consistent with the EU copyright system, including the InfoSoc Directive and international obligations.
What could this mean?
This is an interesting opinion to consider. Ireland has had a strained legal relationship with the European Commission when it comes to implementation of the Directive.
First, Ireland was penalised for not implementing the original Directive on time (Case C-269/05). This coincided with the review of Irish copyright law that ultimately led to the Copyright and Related Rights Act 2000 (“2000 Act”).
Second, when Ireland did implement the original Directive in the 2000 Act, it was later found to have done so incorrectly. Originally, the 2000 Act exempted all public and educational institutes from the payment of public lending obligations under the Directive. In 2007, the ECJ – as it was then called – in Case C-175/05 found that the exempting of all public lending institutions, and not only certain categories, from payment of the public lending right was incompatible with the Directive. This led to the amendment of the 2000 Act by the Copyright and Related Rights (Amendment) Act 2007 and the establishment of a public lending remuneration scheme under Section 42A and the Copyright and Related Rights (Public Lending Remuneration Scheme) (Amendment) Regulations 2013.
While not binding, Advocate Generals’ opinions are often followed by the court. Further amendments may be required if the CJEU follows the opinion of the Advocate General.
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