A manifesto for an e-lending limitation in copyright

Author:Séverine Dusollier
Position::Professor, SciencesPo Paris
Pages:213-229
SUMMARY

In the European Union, lending is an exclusive right for copyright and related rights, but Member States can transform public lending to a right of remuneration and even exempt some establishments from any payment. The making available of works online is not covered by the public lending right regime of the Rental and Lending Directive but is considered as an act of making available governed by the InfoSoc Directive. As a consequence, libraries are currently not allowed to... (see full summary)

 
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A manifesto for an e-lending limitation in copyright
2014
213
3
A manifesto for an e-lending
limitation in copyright
by Séverine Dusollier, Professor, SciencesPo Paris
© 2014 Séverine Dusollier
Everybody may disseminate this ar ticle by electroni c means and make it available for downlo ad under the terms and
conditions of the Digita l Peer Publishing Licence (DPPL). A copy of the license text may be obtaine d at http://nbn-resolving.
de/urn:nbn:de:0009-dppl-v3-en8 .
Recommended citation: Sé verine Dusollier, A manifesto for an e-lending limitation in copyr ight 5 (2014) JIPITEC 213, para 1.
Keywords: e-lending, public lending right, libraries, copyright limitation, licensing
a criterion of direct substitution of a book on loan
at the library to a book bought at a retailer. By def-
inition, libraries are substitutes to normal trade. In-
stead, the overall effect of lending to the commercial-
isation of books and other works should be verified.
Particular conditions for a limitation in favour of lend-
ing are also addressed, and notably the modalities of
lending (a limited duration, one simultaneous user
per title, …), not to make e-lending through libraries
easier and preferable to the normal acquisition of an
e-book. This paper argues in favour of some and con-
trolled extension of the public lending right to cover
the lending of e-books and other digital content. For
the role of libraries is essential in providing access
to works and culture to readers who would or could
not rely only on normal acquisition of books or other
items on the market, to works that are not provided
by the market, and to material for research. Libraries
are a third sector providing access to works, aside the
market and non-market exchanges between individ-
uals. This role should not lose its relevance in the dig-
ital context, or it would culturally impoverish future
generations of readers.
Abstract: In the European Union, lending is an
exclusive right for copyright and related rights, but
Member States can transform public lending to a
right of remuneration and even exempt some estab-
lishments from any payment. The making available
of works online is not covered by the public lending
right regime of the Rental and Lending Directive but
is considered as an act of making available governed
by the InfoSoc Directive. As a consequence, libraries
are currently not allowed to digitally transmit works
to their patrons as lending, but have entered into li-
censes with publishers to develop an offer of lending
of e-books, also called e-lending, with the intermedi-
ation of dedicated platforms operated by commercial
actors. Compared to physical lending, e-lending is not
based on ownership of the book by libraries but on its
provision by this intermediary. This paper discusses
how the objective of enabling libraries to engage in
e-lending should be achieved, and what is the proper
dividing line between a market-based solution, as
developing today, and a limitation to exclusive rights.
The impact of an extension of the public lending right
to e-lending should be assessed, but not based on
A. Introduction
1
With the outbreak of commercial exploitation of
e-books due to the success of the Kindle by Amazon
and, soon after, of tablets and other e-readers,
libraries have embarked on the practice of making
e-books available to their patrons in what resembles
the traditional activity of lending. Patrons are
increasingly demanding to nd e-books in their
2014
Séverine Dusollier
214
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libraries. While e-lending has become a reality in
some countries-- such as the US, where thousands of
libraries propose to download e-books-- experiments
have started in many European States. In all of those
cases, remote loans of e-books are organized by
licensing between publishers and libraries, generally
with the intercession of an intermediary offering a
dedicated platform for e-lending. Indeed, the public
lending exception that is known in the European
acquis communautaire and allows the libraries to lend
books in most countries does not apply to the on-
line provision of an e-book, even for a limited time.
Hence, offsite lending of digital content cannot, in
principle, benet from the regulatory frame that
exists in most Member States and authorizes public
libraries to engage in lending against a remuneration
to authors (from which some establishments can
even be exempted). Lacking an exception, libraries
have chosen to develop e-lending that is based on
licensing with copyright owners.
2
Not all libraries are satised with the interpretation
against the coverage of off-site lending by the
directive 2006/115 and its national transpositions.
In the Netherlands, the Vereniging van Openbare
Bibliotheken (Association of Public Libraries) has
brought the matter before the courts. They started
a test case against the collective management
organisation in charge of the lending right to
be allowed to provide e-books in libraries for
download1. Earlier this fall, the court of rst instance
of the Hague has referred preliminary questions to
the European Court of Justice as to whether the
making available of e-books by downloads by a
public library can be considered as “lending”2. It
would be surprising if the UE court decides to include
e-lending in the notion, save for an odd development
around exhaustion (with the ECJ, you’ll never know!).
Only the European lawmaker could decide to open
the eld of public lending right to e-books.
3 This paper claims that the copyright limitation for
public lending should be extended to the digital
environment on the ground that it has too much
democratic and cultural value to be left completely
in the hands of market transactions. Due to the fact
that copyright exceptions need to age and evolve
with the digital transformations, public libraries
should also embrace, to some extent, the shift from
books to digital content. Otherwise, libraries will
lose a great part of their role in society, and most
of their soul.
4
E-lending that will be covered here stands for the
making available of digital works by public libraries
for a limited duration through the Internet or
libraries’ networks, by downloading, streaming, or
similar modes of transmission3. It will not encompass
the lending of e-books, by installation of e-books
on devices of the user (tablets, smartphones or
computers), that also occurs in libraries, nor by
lending an e-reader on which the library has loaded
some content. Commercial book retailers have also
started to develop e-lending services. A typical
case is Amazon, that offers access to e-books for a
premium yearly subscription
4
. Such business models
have only the name of e-lending as they have not
much to do with public lending right, but could
rather be considered forms of rental. They will not
be discussed further.
5 This paper is structured in three parts. It will start
by giving a description of the context of the public
lending, both in the practices of libraries and in a
legal perspective (A.). Then, the shift to e-lending will
be addressed (B.). The shortcomings of the current
situation that leave too much leeway to the market
will justify the need for an e-lending limitation in
copyright, which we will develop in a last part (C.).
B. The context of public lending
I. Public lending in libraries
6
Libraries and other cultural heritage institutions
carry out a discrete series of activities that, at
different degrees, further the preservation and
dissemination of knowledge, from acquiring and
developing a collection, preserving it, indexing
it, making it available on its premises, organising
education activities, helping persons to nd what
they are looking for, to ultimately letting people
checking out books to read, learn, and entertain
themselves. As repositories for cultural artefacts
produced by a society, libraries occupy a central
place in the politics of access to culture, research
and learning.
7
Public lending is one of the core activities of libraries5,
but its intensity might signicantly differ from one
type of library to the other, with the consequence
that the activity presents a varying impact on the
practices of users, market of copyrighted works, and
protection of rights holders.
8
Academic and research libraries, as institutions
associated with universities or research
establishments, aim at supporting scholarly or
scientic research. Their main activity is to constitute
a collection of scholarly books, journals, or databases
that will be mostly consulted on the premises of the
library. Acts of lending happen but are more limited
than in general libraries. Researchers and students
will check out books from those libraries when they
need more time to search in the book. The objective
of the lending is, thus, research and thorough
consultation, without necessarily an extensive
reading of the book. Academic and research libraries
will also engage more often in interlibrary loans.

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