AG Szpunar says that time-limited e-lending is allowed under EU law and interpretation of copyright norms must evolve with technology

AG Maciej Szpunar

Are libraries allowed to lend electronic books in their collections under the Rental and Lending Rights Directive? If so, under what conditions? Is there such thing as digital exhaustion under the InfoSoc Directive? As to the latter, we know - via UsedSoft [Katposts here] there that there is such thing under the Software Directive, but whether this is also true for the principal copyright directive has been debated for a while [with some possible hints provided by Allposters, here, although not everybody agrees: see below].

Those above are - in a nutshell - the questions currently pending before the Court of Justice of the European Union (CJEU) in Vereniging Openbare Bibliotheken v Stichting Leenrecht, C-174/15, a reference for a preliminary ruling from the Rechtbank Den Haag (District Court of The Hague, Netherlands). 

This reference has arisen in the context of proceedings brought by the association of Dutch public libraries which, contrary to the position of Dutch government, believes that libraries should be entitled to lend electronic books included in their collections according to the principle "one copy one user". This envisages the possibility for a library user to download an electronic copy of a work included in the collection of a library with the result that - as long as that user "has" the book - it is not possible for other library users to download a copy. Upon expiry of the e-lending period, the electronic copy downloaded by the first user becomes unusable, so that the book in question can be e-borrowed by another user. 

The AG Opinion

This morning Advocate General (AG) Maciej Szpunar delivered his Opinion [not yet available in English], and advised the CJEU to rule that Article 1(1) of the Rental and Lending Rights Directive must be interpreted in the sense of including the right to lend electronic books included in a library's own collection. Although the AG held the view that the issue of digital exhaustion under the InfoSoc Directive is unrelated from that of whether libraries can e-lend, he provided some interesting hints in this respect. 

Incidentally, this is a truly beautifully-written Opinion, in which the AG linked the legal issues facing this reference to the broader discussion of the role of libraries [it is interesting to note how recently some 'new' AGs, like Szpunar and Wathelet (eg GS Media), have produced ambitious and forward-looking opinions, that represent a welcome departure from the fairly dry style of some other AGs ...].

The Opinion opens in fact with the following consideration [WARNING: Kat-translation from Italian]:

"Libraries are a very old creation of humankind, that has preceded by various centuries the invention of paper and the appearance of books as we know them today. Libraries have been able to adapt to the invention, in the XV century, of print, from which they have taken advantage, and it is to them that copyright, emerged around the XVIII century, has had to adapt. We are now facing a new revolution: the digital one. Will libraries survive this drastic change of environment? Without exaggerating the importance of the present case, it cannot be denied that this is an opportunity to help libraries not just to survive, but also gain new impetus." 

Libraries have always
been interesting places,
not just to borrow books

E-lending is included in the Rental and Lending Rights Directive

The first question referred by the Dutch court is whether Article 1(1) of the Rental and Lending Rights Directive, read in combination with Article 2(1)(b) therein, must be interpreted in the sense that the making available by libraries, for a limited time, of electronic books would falls within the scope of the lending right.

The AG noted at the outset that [again, Kat-translation], "the interpretation of Directive 2006/115 [first adopted in 1992 as Directive 92/100] must respond to the needs of modern society and accommodate different interests. At the same time, such interpretation must conform to EU's international obligations and conform to the other EU legislative instruments in the area of copyright" (para 23). 

This said - and in line with leading commentaries - "it is unquestionable that, at the time [of its adoption], EU legislature had not intended to include the lending of electronic books in the concept of lending in directive 92/100" (para 25). However, this does not mean that e-lending should be excluded from the scope of the Rental and Lending Rights Directive. According to the AG, three main reasons support this conclusion:

1. First, "it is indispensable to interpret legal acts taking into account the evolution of technology, market and behaviours, and not crystallise such acts in the past with an excessively rigid interpretation" (para 27). According to the AG, "such interpretation ... is ... necessary, in particular in areas strongly influenced by technological progress, such as copyright. In fact, such progress is nowadays so rapid to anticipate easily the legislative one, often making attempts to update legal provisions through this process vain" (para 28).
2. Secondly, "the principal objective of copyright is to safeguard the interests of authors" (para 34). So not the publishers, continued the AG, who noted that "an interpretation of Directive 2006/115 according to which e-lending is included in the notion of «lending» not only would not harm the interests of authors but, on the contrary, would allow a better protection of their interests than what is currently the case" (para 36).
3. Finally, libraries have always lent books without the need for any authorisation to do so: "This is explained by the fact that books are not a commonplace good and literary creation is not just an economic activity. The importance of books for the preservation and access to culture and scientific knowledge has always prevailed over mere economic considerations" (para 37). "[I]n the age of digitisation, libraries must be able to continue to fulfil the same function of preservation and access to culture as it was the case when books only existed in paper format" (para 38).

Certainly you can't sleep on digital copies

No specific discussion of digital exhaustion, but ...

The AG refrained from addressing the question of whether the InfoSoc Directive envisages digital exhaustion, because he found it distinct from the question whether e-lending falls within the scope of the Rental and Lending Rights Directive (para 83).

This said, the Opinion contains some hints which appear to suggest that there is no particular reason as to why digital copies of works should be treated differently from analogue ones, at least under the Rental and Lending Rights Directive (see paras 31 and 44 in particular). Furthermore, the AG recalled the interpretation of 'copy' as provided by the CJEU in UsedSoft and also that - so far - this has been the only decision in which the Court has interpreted copyright concepts in the digital context (para 50). 

"According to a rigorous interpretation of the principle of terminological coherence, the term «copy» employed both in Directive 2001/29 and Directive 2006/115 should be intended in the sense of including digital copies devoid of physical support" (para 52). In the view of the AG, "the decision Art & Allposters International does neither re-open nor limit in any way the conclusions arising from the decision UsedSoft" (para 54).

Let's now see whether the CJEU agrees: stay tuned!