A Collective Licensing Scheme for Lending of Phonograms from Digital Libraries

Author:Elise Vasamäe
Position:Magister iuris. Attorney-at-law, Aavik & Partners Law Office

1. Introduction - 2. Public lending right in the analogue environment - 3. Lending of phonograms from libraries in the digital environment - 4. Balance between the interests of the stakeholders concerned - 5. Options for managing the lending right - 6. Conclusions

Elise Vasamäe
Magister iuris
Attorney-at-law, Aavik & Partners Law Of ce
A Collective Licensing Scheme
for Lending of Phonograms
from Digital Libraries
1. Introduction
Copyright law has always been shaped by the technology of the day. Each new technological development
has brought with it discussion of the necessity of renewing the corresponding legislation, followed, as a rule,
by changes in laws and regulations. The same holds true with rights related to copyright (below referred to
also as related rights). In this process, the position and strength of right-holders has been one of the decisive
The various social and economic implications of the information society serve controversial aims. They
require that the speci c traditional and well-established (exclusive) rights of right-holders be taken into
account. At the same time, it is essential to encourage global exchange of information and development of
culture, science, and education.
The main dif culty has, throughout history, laid in nding the appropriate balance among the interests
of the right-holders, the users of protected content, and the general public, and that holds today too, as it
probably will in the future. In this article, the author concentrates on the legal issues related to the lending
of phonograms from digital libraries. When establishing the rules of digital libraries and opportunities for
using copyrighted content in the everyday activities of these institutions, one is bound to the current legal
framework. The creation of digital libraries brings with it a very crucial legal debate as to whether it would
be balanced to limit the existing exclusive rights of right-holders and to what extent this would be justi ed.
Can the balance be based on thinking in old categories (‘old thinking’), or should we start an era of ‘new
thinking’, based on different concepts and preferences? The issue concerning digital libraries is one of the
challenges for this ‘new thinking’.
The author of this article holds the opinion that it should be possible in the digitalised dimension of
the global environment to access copyrighted content easily via the Internet in order to use it for scien-
ti c, research, educational, and cultural purposes. The possibility of lending the phonograms is important
mainly for cultural diversity and development but also serves entertainment purposes. It is dif cult to draw
a line between cultural purposes and entertainment purposes, just as it is impossible to determine the exact
objective of every person accessing the phonograms made available in digital libraries—though, in compari-
son with books, the phonograms are more likely to serve an amusement or hedonistic purpose.
The necessity of the creation of digital libraries has been under discussion in the European Union for
some years now. In 2008, the European Commission issued the Green Paper on Copyright in the Knowl-

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