E-books and the public lending exception

E-books and the public lending exception

Copyright Law is continuously being challenged by the digital era we are currently in. Consequently the European Court of Justice (ECJ) has over the years been requested to shed its light on various (digital) subjects such as hyperlinks, embedding and reselling of digital goods. Recently the ECJ has given a preliminary ruling with regard to the public lending exception of E-books (case C-174/15). In this article I will discuss the relevant outline of this case.

The request for the preliminary ruling has been made in proceedings between a public library association and a lending right foundation, concerning the possible infringement of the exclusive lending right referred to in article 1(1) Directive 2006/115. In short, article 1(1) stipulates that Member States shall provide a right to authorise or prohibit the rental and lending of originals and copies of copyright works.

By its first question, the referring court asked the ECJ, whether Article 1(1), Article 2(1)(b) and Article 6(1) of Directive 2006/115 must be interpreted as meaning that the concept of ‘lending’, covers the lending of a digital copy of a book (i.e. an E-book).

The ECJ confirms this question as follows.

“52. Given the importance of the public lending of digital books, and in order to safeguard both the effectiveness of the derogation for public lending referred to in Article 6(1) of Directive 2006/115 (‘the public lending exception’) and the contribution of that exception to cultural promotion, it cannot therefore be ruled out that Article 6(1) of Directive 2006/115 may apply where the operation carried out by a publicly accessible library, in view of, inter alia, the conditions set out in Article 2(1)(b) of that directive, has essentially similar characteristics to the lending of printed works.”

In other words digital ‘lending’ of E-books is covered by the public lending exception if the E-book is made available:

  1. for a limited period of time;
  2. without direct or indirect economic or commercial advantage, when it is made available through establishments which are accessible to the public; and
  3. has essentially similar characteristics to the lending of printed works.

Aforementioned ‘essential similar characteristics’ are the following:

  1. the lending is carried out by placing a copy of the E-book on the server of a public library, allowing the user concerned to reproduce that copy by downloading it onto his own computer;
  2. only one copy of the E-book can be downloaded during the lending period;
  3. after the lending period has expired, the downloaded copy can no longer be used by that user.

Needless to say, public libraries are either required to provide their E-book users with special viewer software, or provide them with E-book formats protected by DRM-technology in order to satisfy the requirements laid down in this preliminary ruling. Most likely users will therefore need to connect to the internet in order to validate the lending period, since (offline) system dates/time can easily be tampered with.

Willem Timmers
Marree en Dijxhoorn

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