tag:blogger.com,1999:blog-5574479.post4936577111457304887..comments2024-03-28T13:45:42.289+00:00Comments on The IPKat: BREAKING: CJEU says that EU law allows e-lending Verónica Rodríguez Arguijohttp://www.blogger.com/profile/05763207846940036921noreply@blogger.comBlogger4125tag:blogger.com,1999:blog-5574479.post-61108765912962969532016-11-17T17:30:18.531+00:002016-11-17T17:30:18.531+00:00Does the decision actually help the libraries in a...Does the decision actually help the libraries in any practical sense?<br /><br />The CJEU says that «there is no decisive ground allowing for the exclusion, in all cases, of the lending of digital copies and intangible objects from the scope of Directive 2006/115«.<br /><br />So Member States can implement national legislation that gives public libraries the right to lend out e-books without the author's consent (provided that at least authors obtain a remuneration for such lending).<br /><br />But how would this work in practice? The libraries still have to (legally) acquire the e-books that they wish to lend out. They can’t go in Pirate Bay and they can’t, as far as I know, make digital copies of books in their collections for such purpose. <br /><br />So they’ll have to «buy» the said e-books, and in doing so, accept the terms provided for by the author/right holder (because «sale» = «license» with digital copies of works). And since the rental and lending rights are not exhausted through any «any sale or other act of distribution of originals and copies of copyright works», cf. Article 1 (2) in the directive, couldn’t the authors/right holders just include a provision in the terms that blocks the «buyer» from lending out the digital copy? (bearing in mind the «sale»-definition in UsedSoft, exhaustion of lending right seems to be out of the question for e-books).<br /><br />As far as I can tell, the author would still have the opportunity to block e-lending through the terms that the library would have to accept to acquire e-books they wish to lend out.<br /><br />… unless the InfoSoc art. 5 (3)c provides an opportunity for Member States to legislate a right for libraries to make the necessary digital copies from the physical copies in their collections?Unknownhttps://www.blogger.com/profile/16549297344988882068noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-80614269005932036602016-11-11T11:04:57.820+00:002016-11-11T11:04:57.820+00:00Now reading through judgement, para. 50 & 51 c...Now reading through judgement, para. 50 & 51 caught my eye, where court considers Art. 6(1) of 2006/115 to be an exception?<br /><br />"...it must be noted that, although Article 6(1) of Directive 2006/115 — as *a derogation* from the exclusive lending right laid down in Article 1 of that directive — must, according to the Court’s settled case-law, be interpreted strictly, the fact remains that the interpretation given must also enable the effectiveness of *the exception* thereby established to be safeguarded and its purpose to be observed"<br /><br />Did I overlook something or since when does 'derogation' = 'exception'? I thought this provision allowed for arrangements that derogate from the fully exclusive right (such as extended collective licensing), but does not necessarily mean that it is an exception ( of course, the legislation could be also established via remunerated exception / mandatory collective management). I'm intrigued to hear opinions on this.<br /><br />@ex-examiner: Sadly, I have to agree that DRM in book software is often easy to circumvent, which will probably only fuel the fire of parties opposing inclusion of e-lending<br /><br /> Anonymoushttps://www.blogger.com/profile/05054728112918244806noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-88881599071099443732016-11-10T15:24:34.080+00:002016-11-10T15:24:34.080+00:00The decision is evidently based on the presumption...The decision is evidently based on the presumption (perhaps "legal fiction" would be more appropriate) that all "one copy, one user" software actually "does what it says on the tin". As noted in a previous related post of 16 June 2016, the system in place at our local public library that is supposed to have "one copy, one user" functionality, is far from 100% effective, being easily circumventable by using ordinary consumer devices in the way that they were designed without employing any special hacking of software or modification of the devices. ex-examinernoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-53874584973993261022016-11-10T12:43:53.211+00:002016-11-10T12:43:53.211+00:00The judgment has been made available in Dutch. To ...The judgment has been made available in Dutch. To answer your question: In paragraph 56 and 57, the Court considers that Article 4(2) of the InfoSoc Directive (regarding copyright exhaustion) is without prejudice to the provisions laid down in the Rental and Lending Rights Directive. According to the Court, this means that Article 4(2) of the InfoSoc Directive is of no importance to the interpretation of Article 6(1) of the Rental and Lending Rights Directive. The Court does not go into digital exhaustion.Anonymousnoreply@blogger.com