Lending of e-books in EU – Advocate General opinion

ebook1The Advocate General of the European Court S ZPUNAR gave an opinion in Case C‑174/15 Vereniging Openbare Bibliotheken v Stichting Leenrecht. The case concerns the following:

There is a lively debate in several Member States, including the Netherlands, concerning the lending of electronic books by libraries. Further to a report commissioned by the Netherlands Ministry of Education, Culture and Science, it was concluded that the lending of electronic books did not fall within the scope of the exclusive lending right for the purposes of the provisions transposing Directive 2006/115 into Netherlands law. Consequently, the lending of electronic books by public libraries cannot benefit from the derogation provided for in Article 6(1) of that directive, which has also been transposed into Netherlands law. A draft law on libraries, based on that premiss, has been drawn up by the government.

However, the applicant in the main proceedings, Vereniging Openbare Bibliotheken (‘VOB’), an association of which every public library in the Netherlands is a member, does not concur with that view. It is persuaded that the relevant provisions of Netherlands law must also apply to digital lending. Consequently, it has instituted proceedings before the referring court against Stichting Leenrecht, a foundation entrusted with collecting the remuneration due to authors under the public lending derogation and the defendant in the main proceedings, for a declaratory judgment holding, in substance, first, that the lending of electronic books falls within the scope of the lending right, secondly, that the making available of electronic books for an unlimited period of time constitutes a sale for the purposes of the provisions governing the distribution right and, thirdly, that the lending of electronic books by public libraries against the payment to authors of a fair remuneration does not constitute copyright infringement.

VOB states that its action concerns lending under the system which the referring court describes as ‘one copy one user’. Under that system, the electronic books at a library’s disposal may be downloaded by a user for a lending period during which those books will not be accessible to other library users. At the end of the period, the book in question will automatically become unusable for the borrower in question and may then be borrowed by other users. VOB has also stated that it wishes to limit the scope of its action to ‘novels, collections of short stories, biographies, travelogues, children’s books and youth literature’.

The interveners in the main proceedings are Stichting Lira (‘Lira’), an organisation which collectively manages rights and represents the authors of literary works and Stichting Pictoright (‘Pictoright’), an organisation which collectively manages rights and represents the creators of visual artworks, both of which support the form of order sought by VOB, and Vereniging Nederlands Uitgeversverbond (‘NUV’), a publishers’ association, which supports the contrary view.

The Rechtbank Den Haag (District Court, The Hague, Netherlands) considers that its response to VOB’s application depends upon the interpretation of provisions of EU law and has referred the following questions to the Court of Justice for a preliminary ruling:

(1)  Are Articles 1(1), 2(1)(b) and 6(1) of Directive 2006/115 to be interpreted as meaning that “lending” within the meaning of those provisions includes the making available for use of copyright-protected novels, collections of short stories, biographies, travelogues, children’s books and youth literature, other than for direct or indirect economic or commercial advantage, by a publicly accessible establishment

–   by placing a digital copy (reproduction A) on the server of the establishment and enabling a user to reproduce that copy by downloading it onto his own computer (reproduction B),

–  in such a way that the copy made by the user when downloading (reproduction B) is no longer usable after the expiry of a given period, and

–   in such a way that other users cannot download the copy (reproduction A) onto their computers during that period?

(2)  If question 1 is answered in the affirmative, does Article 6 of Directive 2006/115 and/or any other provision of EU law preclude Member States from making the application of the restriction on the lending right referred to in Article 6 of Directive 2006/115 subject to the condition that the copy of the work made available by the establishment (reproduction A) has been put into circulation by a first sale or other transfer of ownership of that copy in the European Union by the rightholder or with his consent, within the meaning of Article 4(2) of Directive 2001/29?

(3)  If question 2 is answered in the negative, does Article 6 of Directive 2006/115 impose other requirements concerning the source of the copy (reproduction A) made available by the establishment, such as a requirement that the copy has been obtained from a legal source?

(4)  If question 2 is answered in the affirmative, is Article 4(2) of Directive 2001/29 to be interpreted as meaning that the “first sale or other transfer of ownership” of material referred to in that provision includes the making available for use, remotely by downloading, for an unlimited period, of a digital copy of copyright-protected novels, collections of short stories, biographies, travelogues, children’s books and youth literature?’

The Advocate’s opinion:

(1)  Article 1(1) of Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property, read together with Article 2(1)(b) of that directive, is to be interpreted as meaning that the lending right enshrined in Article 1 includes the making available to the public of electronic books by libraries for a limited period of time. Member States that wish to introduce the derogation provided for in Article 6 of the same directive for the lending of electronic books must ensure that the way in which that lending is carried out is not in conflict with the normal exploitation of works and does not unreasonably prejudice the legitimate interests of authors.

(2)  Article 6(1) of Directive 2006/115 must be interpreted as not precluding Member States which have introduced the derogation provided for in that provision from requiring that electronic books which are lent under that derogation should first have been made available to the public by the rightholder or with his consent, provided that that limitation is not formulated in such a way as to restrict the scope of the derogation. That provision must be interpreted as applying solely to electronic books obtained from lawful sources.

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