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CJEU rules that the borrowing of digital books is within copyright law

Written by Thomas Mould on 22 November 2016

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Public libraries across the EU can lend electronic books (e-books) in a similar way to physical books without falling foul of copyright laws, the EU's highest court has ruled.

The Court of Justice of the EU (CJEU) said that rental and lending rights of digital books is covered by copyright.

"The concept of ‘lending’ [under the EU's directive on copyright relating to rental rights and lending rights] … covers the lending of a digital copy of a book, where that lending is carried out by placing that copy on the server of a public library and allowing a user to reproduce that copy by downloading it onto his own computer, bearing in mind that only one copy may be downloaded during the lending period and that, after that period has expired, the downloaded copy can no longer be used by that user," the CJEU said in its judgment.

The Court said that such circumstances for lending e-books is "essentially similar characteristics to the lending of printed works, since, first, the limitation of simultaneous downloads to a single copy implies that the lending capacity of the library concerned does not exceed that which it would have as regards a printed work and, secondly, that lending is made for only a limited period".

The Court was asked to rule on the issue in a case referred to it by a court in the Netherlands where an association representing Dutch public libraries, Vereniging Openbare Bibliotheken (VOB), has been in dispute with the Dutch government.

In the Netherlands, libraries operate a 'one copy, one user' policy through which e-books can be 'checked out' by a single reader at which point they will become unavailable to other readers. Once 'checked in', the book is made available to the public again and the copy on the previous reader's device stops working.

VOB has argued that its approach effectively mimics that of lending physical books, which is permitted by virtue of the EU's directive on copyright relating to rental rights and lending rights. Through the directive, libraries are given a special 'public lending' exemption from copyright law as long as the author is fairly remunerated. Stichting Leenrecht, the Dutch government agency which collects this remuneration on behalf of authors, has disputed VOB's position.

In its ruling the CJEU said that EU countries are free to apply legislation that restrict the public lending of e-books to copies that have already "been put into circulation by a first sale or other transfer of ownership of that copy in the European Union by the holder of the right of distribution to the public or with his consent".

The Court said such restrictions can help reduce the risk of e-book lending being agreed between libraries and publishers in a way which prejudices "the legitimate interests of authors" and could in fact improve "the protection of authors’ rights" in the way the public lending right is applied in the context of e-books.

 

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