June 27, 2016

In Advocate General Maciej Szpunar’s view, therefore, the general regime of the lending right, which provides for the fair remuneration of authors under the public lending exception, is applicable.

The Rental and Lending Right Directive (2006/115/EC) provides that the exclusive right to authorise or prohibit rentals and loans belongs to the author of the work.  Member States can, however, derogate from that exclusive right in respect of public lending, provided that authors obtain, at least, fair remuneration.

In the Netherlands, the lending of electronic books does not come within that regime.  However, the Vereniging Openbare Bibliotheken (VOB), an association to which every public library in the Netherlands belongs, took the view that the regime should also apply to digital lending.  It issued proceedings against the authors’ collecting society, Stichting Leenrecht, seeking a declaratory judgment to that effect.

VOB’s action concerned lending under the “one copy one user” model: an electronic book at a library’s disposal can be downloaded by a user for the lending period on the understanding that it is not accessible to other library users during that period.  At the end of that period, the book in question automatically becomes unusable for the borrower in question and can then be borrowed by another user.

The District Court in The Hague referred various questions to the Court of Justice of the European Union.

Advocate General Szpunar has opined that the making available to the public, for a limited period of time, of electronic books by public libraries may indeed come within the scope of the 2006 Directive.

In the Advocate General’s view, the EU legislature did not contemplate the inclusion of the lending of electronic books within the Directive’s concept of “lending” simply because the technology relating to commercially viable electronic books was at that time only in its infancy.

Therefore, a “dynamic” or “evolving” interpretation of the Directive should be applied and that the lending of electronic books should be considered to be the modern equivalent of the lending of printed books.  Only this interpretation can ensure the effectiveness of the Directive in a sector that is going through rapid technological and economic development.

The Advocate General also points out that the main purpose of copyright is to protect the interests of authors.  At present, libraries do indeed lend books in electronic form under licensing agreements concluded between libraries and publishers, which is principally of benefit to publishers or other intermediaries in the electronic book trade, but no adequate remuneration is received by authors.  If, by contrast, digital lending were regarded as coming within the scope of the Directive, authors would, as a result, receive fair remuneration, in addition to that generated by the sale of books and independently of agreements concluded with publishers.

In addition, the Advocate General said, such an interpretation is in no way incompatible or inconsistent with the various provisions of EU law in the field of copyright or with the EU’s international obligations.  (Case C-174/15 Vereniging Openbare Bibliotheken v Stichting Leenrecht (Opinion of Advocate General Maciej Szpunar) 16 June 2016 — to access the Opinion in full, go to the curia search form, type in the case number and follow the link).