E-lending before the ECJ
On November 10th 2016, the European Court of Justice delivered its judgment in the Dutch E-lending case.
The Court decided that the lending of e-books by public libraries under the ‘one copy, one user’ model is allowed under the public lending right exception in EU law. The ‘one copy, one user’ model entails the lending of an e-book carried out by placing the copy on the server of a public library which can be downloaded by one user during the lending period, and which can no longer be used after the lending period has expired. The full text of the judgment can be found at curia.europa.eu.
Hereby the press release of the Court of Justice of the European Union.
The judgment is in line with the conclusion of the Advocate General M. Szpunar of June 16th 2016.
This case was initiated by the Dutch Association of Public Libraries (VOB) in June 2013 against Stichting Leenrecht (the Public Lending Rights Office). In The Netherlands, the lending of e-books is not included in the current public lending regime applicable to traditional books. The VOB argued that the exception for public lending should also cover the lending of e-books, so that public libraries can fulfill their statutory duties and ensure that e-books are easily accessible for everybody. The Dutch Association of Publishers (NUV), Stichting Lira (the collecting society for authors) and Stichting Pictoright (the collecting society for visual authors) intervened in the proceedings.
Lira and Pictoright argued in favour of an exception for e-lending because in their view that is the only way to guarantee an appropriate income for authors. NUV pleaded that the lending of e-books is not comparable with the lending of tangible copies and therefore should not be covered by the exception for public lending. According to NUV, an exception for e-lending would lead to a severe distortion in the market. Leenrecht represents the interests of authors as well as publishers, and therefore did not take a position in the case and deferred to the discretion of the court.
Because the outcome of these proceedings can have far-reaching consequences for other European member states, the European Commission and several member states also took a position in this case. The European Commission argued that the exception for public lending also covers the lending of e-books. Based on the context and purpose of the rental and lending right directive and because there is no fundamental difference between e-books and tangible books, e-lending should also be covered by the exception for public lending. Portugal, the United Kingdom, Latvia and Italy also argued that e-lending falls or should fall within the scope of the exception for public lending. Greece, the Czech Republic, Germany and France argued that aforementioned directive and the exception for public lending do not and should not cover the lending of e-books.
The case will now be referred back to the Dutch District Court of The Hague, to give a judgment in the original case, taking heed of the judgment of the European Court of Justice.