Breemen, V.

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UvA-DARE is a service provided by the library of the University of Amsterdam (https://dare.uva.nl)UvA-DARE (Digital Academic Repository)A matter of interpretation: libraries land a ‘victory’ in CJEU’s judgment on e-lendingBreemen, V.Publication date2016Document VersionFinal published versionLink to publicationCitation for published version (APA):Breemen, V. (Author). (2016). A matter of interpretation: libraries land a ‘victory’ in CJEU’sjudgment on e-lending. Web publication or website, Kluwer Copyright Blog.http://kluwercopyrightblog.com/2016/11/21/matter-interpretation-libraries-land-victory-cjeus-judgment-e-lending/General rightsIt is not permitted to download or to forward/distribute the text or part of it without the consent of the author(s)and/or copyright holder(s), other than for strictly personal, individual use, unless the work is under an opencontent license (like Creative Commons).Disclaimer/Complaints regulationsIf you believe that digital publication of certain material infringes any of your rights or (privacy) interests, pleaselet the Library know, stating your reasons. In case of a legitimate complaint, the Library will make the materialinaccessible and/or remove it from the website. Please Ask the Library: https://uba.uva.nl/en/contact, or a letterto: Library of the University of Amsterdam, Secretariat, Singel 425, 1012 WP Amsterdam, The Netherlands. Youwill be contacted as soon as possible.Download date:09 Mar 2023A  matter  of  interpretation:libraries land a ‘victory’ in CJEU’sjudgment on e-lendingKluwer Copyright BlogNovember 21, 2016Vicky Breemen (Institute for Information Law (IViR))Please refer to this post as: Vicky Breemen, ‘A matter of interpretation: librariesland a ‘victory’ in CJEU’s judgment on e-lending’, Kluwer Copyright Blog, November2 1  2 0 1 6 ,http://copyrightblog.kluweriplaw.com/2016/11/21/matter-interpretation-libraries-land-victory-cjeus-judgment-e-lending/Yes, e-lending can land itself a spot underthe public lending right. That is what theEuropean  Court  of  Justice  held  in  itspreliminary  ruling  in  the  case  betweenVereniging  Openbare  Bibliotheken  v.Stichting  Leenrecht  (10  November  2016,case  C‑174/15).  The  decision  clarifies  theRental  and  Lending  Rights  Directive’sscope of  application.  It  is  an important  judgment,  because it  means that  thederogation of the exclusive lending right extends to certain digital materials, albeitunder specific conditions. Consequently, libraries do not need prior permission forcertain forms of lending of e-books, provided that they pay remuneration. It alsoshows  that  legislative  choices  regarding  the  definition,  subject  matter  andconditions  of  the public  lending rights  regime have always been a  matter  ofinterpretation.For one thing, this is clear from the origins of the case, which go back to the Dutchlibrary system’s reorganisation process (late 1990s-2014).  The aim was to reflecton the library’s functions in the developing information society. To that end, thethen-State Secretary for Education, Culture and Science envisaged an updatedLibrary Act, but kept copyright out of the library policy reform. Nevertheless, in2011,  he announced an exploratory study on lending legislation in the digitaldomain, even though he understood its scope as encompassing physical mediaonly. The question set for this joint study by SEO Economic Research and theInstitute for Information Law (IViR) was multi-layered. Paraphrased, the legal partinquired whether the current lending rules in the Dutch Copyright Act (Auteurswet)covered e-lending; and if not, whether the European legal framework either leftspace to facilitate this practice, or could be amended. At the close of 2012, thestudy concluded that, under the prevailing interpretation manifested in legislativehistory, the public lending right was confined to material copies of works – even ifboth the national  and the European legislator recognised the importance of  adiverse  digital  offering  and  the  possibilities  of  electronic  lending.  For  the  timebeing therefore,  the existing risks and uncertainties warranted caution by thenational legislator with regard to legislative initiatives. Yet the study also indicatedthat  the  introduction  of  a  copyright  exception  could  eventually  be  deemednecessary.  If  that  were  the case,  space would  first  need to  be created at  the EUlevel – in other words, the chosen interpretation would need to be restated. In turn,this  reading was widely perceived as signifying that e-lending ‘should’  not bepossible under an exception, while the central question was actually descriptiverather than normative. In any case, dissatisfied with the outcome, the VerenigingOpenbare Bibliotheken (Netherlands Association of Public Libraries, VOB) brought acase  against  Stichting  Leenrecht  (Dutch  Public  Lending  Right  Office)  halfwaythrough 2013. Interestingly, the VOB did not seek to change the law as such butrather  its  interpretation,  pursuing  a  declaratory  ruling  to  affirm that  the  relevantlegal provisions already allow for digital lending.Ultimately, in 2014, the Court of the Hague found that the case revolved aroundthe  question  of  whether  ‘e-lending’  qualified  as  ‘lending’  in  the  legal  sense.  Itconcluded that this had to be assessed in light of the acquis communautaire: theanswer depended on an explanation of the Rental and Lending Rights Directive’sdefinitions.  According to  the court,  legislative history offered arguments both proand contra. Moreover, the functional equivalence of e-lending to physical lendingalso  gave  rise  to  different  viewpoints.  This,  in  combination  with  the  fundamentalcharacter of the issue, led the court to refer questions of interpretation to the ECJin  2015.  Briefly  put,  the  first  question  asks  whether  ‘lending’  in  the  sense  ofDirective 2006/115 (artt. 1(1), 2(1)(b) and 6) also involves the making available ofelectronic copies, for temporary use, by publicly accessible institutions via a so-called ‘one copy one user’ model. Other questions relate to the permissibility ofadditional  conditions: does the copy involved need to have been brought intocirculation  by  first  sale,  or  derive  from  a  lawful  source?  And  in  the  former  case,what is the scope of the exhaustion doctrine under the Copyright Directive inrelation to digital copies (art. 4(2))?Then, last June, Advocate-General Szpunar presented his vision on the e-lendingcase.  His  conclusion  emphasised  the  role  of  libraries  in  the  dissemination  ofculture, which they should be able to keep performing in a modern society. Indeed,he argued in favour of a “dynamic” interpretation of the Rental and Lending RightsDirective,  which  would  meet  the  needs  of  technological  progress  and  themodernisation of library functioning. In his view, the “functional equivalent” oftraditional lending, namely its digital counterpart, should thus be brought withinthe public lending rights regime. He contended that this interpretation was notcontrary to the text and structure of the directive; in contrast, it would effectuatethe  lending  regime’s  objectives  –  adapting  copyright  to  the  realities  of  theinformation society on the one hand, and ensuring access to culture on the other.(See this post as well on the AG’s conclusion.)Finally, in last week’s judgment, the European Court chose to largely follow thisopinion. The main finding was that digital lending should not be excluded from theRental and Lending Rights Directive’s scope in all  cases. Such a conclusion isneither supported by the preparatory work of Directive 92/100 (which Directive2006/115  codifies),  nor  by  its  language.  For  instance,  even  if  the  EuropeanCommission expressed its intention to exclude electronic data transmission fromthe lending regime, the Court held that this concerned films rather than books. Inaddition, the Commission’s desire in this direction did not appear in the actual textof the proposal for the Rental and Lending Rights Directive. In the same vein, artt.1(1)  and 2(1)(b)  of  Directive 2006/115 do not  specify  whether  the notions of‘originals and copies’ and ‘lending’ also cover digital copies or intangible objects.Though  the  Court  maintains  that  ‘rental’  does  solely  concern  fixed  copies  wheninterpreted  in  light  of  art.  7  WIPO  Copyright  Treaty,  that  reading  does  notautomatically  extend  to  lending.  After  all,  the  directive  defines  ‘lending’separately. Where appropriate, therefore, the Court concludes that lending can beinterpreted to denote certain modes of digital lending as well. This is in line withthe AG’s dynamic interpretation: in combination with the objective of the directive,namely, to adapt copyright to new economic developments and new forms ofexploitation (Recital 4) and to ensure author protection (implicitly Recital 5), digitallending justifies adaptation of the copyright framework.Apart from the scope of ‘lending’, the Court addresses the permissibility of criteriabeyond those found in the directive. First, the Court does not deem exhaustionrelevant to lending. Yet, Member States may require that the digital copies of books made available by public libraries have been disseminated by a first sale orother transfer of ownership by the right holders, or with their consent. The reasonlies in reducing the risk of prejudicing the author’s interests. Due to the way thequestions  have  been  asked,  the  Court  does  not  get  to  address  the  digitalexhaustion  doctrine  in  the  context  of  the  Copyright  Directive.  The  notion’srelevance to the present case was debatable anyhow. The AG had not  reallyformulated  a  conclusive  opinion  on  this  either.  Finally,  a  second  additionalcondition which is considered allowable, is that the copy in question must havebeen obtained from a lawful source. Though not stated in the directive as such, theCourt concludes so in view of its aim to combat piracy. Furthermore, it establishesan analogy with its decision in the private copying case ACI Adam (10 April 2014,case C-435/12, on which, see here). In conclusion, the acceptability of additionalcriteria can be traced back to the Court’s observation that the directive lays downa  minimum  threshold  of  author  protection,  which  states  may  exceed  whereappropriate.In summary, the Court clearly values a teleological interpretation in its decision,aiming  to  legally  facilitate  the  public  lending  of  digital  books  in  light  of  its“importance”.  In  doing  so,  the  judgment  focuses  on  functions,  and  morespecifically,  on  lending  as  one  manifestation  of  the  central  mission  of  providingaccess  to  information,  knowledge  and  culture,  in  an  equal  and  low-thresholdfashion, helping users to educate themselves. In this view, those acts with “similarcharacteristics” to traditional lending should be treated the same. This way, theCourt wants to ensure the effectiveness of the public lending rights regime. At thesame time, this reasoning limits the impact of the decision to one manifestation ofe-lending: the ‘one copy one user’ model. It is therefore questionable whether theprocedure’s result  is  in accordance with existing library practice,  but it  is  theCourt’s way of balancing the interests involved: on the one hand, libraries can atleast  offer  some  online  lending  services;  on  the  other,  authors  are  ensuredremuneration.The case will now go back to the national court, which must deliver a decision inline with the ECJ’s interpretation of the selected provisions. But it is clear that theruling will have major consequences for the library practice of e-lending acrossEurope.The author wishes to thank Kelly Breemen (IViR) for useful suggestions.

A matter of interpretation: libraries land a ‘victory’ in CJEU’s judgment on e-lending

https://pure.uva.nl/ws/files/28023659/A_matter_of_interpretation.pdf

A matter of interpretation: libraries land a ‘victory’ in CJEU’s judgment on e-lending

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