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...