Breemen, K.

Breemen, V.

English

International Migration, Integration and Social Cohesion online publications

UvA-DARE is a service provided by the library of the University of Amsterdam (https://dare.uva.nl)UvA-DARE (Digital Academic Repository)Can e-lending land itself a spot under the public lending right?Breemen, K.; Breemen, V.Publication date2013Document VersionFinal published versionLink to publicationCitation for published version (APA):Breemen, K. (Author), & Breemen, V. (Author). (2013). Can e-lending land itself a spot underthe public lending right?. Web publication or website, Kluwer Copyright Blog.http://kluwercopyrightblog.com/2013/03/04/can-e-lending-land-itself-a-spot-under-the-public-lending-right/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:10 Mar 2023Can  e-lending  land  itself  a  spotunder the public lending right?Kluwer Copyright BlogMarch 4, 2013Kluwer Copyright BloggerPlease refer to this post as: Kluwer Copyright Blogger, ‘Can e-lending land itself aspot  under  the  public  lending  right?’,  Kluwer  Copyright  Blog,  March  4  2013,http://copyrightblog.kluweriplaw.com/2013/03/04/can-e-lending-land-itself-a-spot-under-the-public-lending-right/“However, in none of the studied countries, e-lending activitiesrely on a statutory copyright or lending right exception.”By Kelly  Breemen and Vicky  Breemen,  Institute  for  Information  Law,Amsterdam (IViR).Public libraries in various countries are increasingly involved in e-lending practices.Thus far, these practices are largely based on contractual agreements between theparties concerned rather than on a copyright exception or limitation. But whywould public libraries not be allowed to lend e-books under the same conditionsthat  apply  to  physical  books,  that  is,  without  prior  authorization  but  againstequitable remuneration?In the context of plans for developing a national digital library, the Dutch Ministerof Education, Culture and Science commissioned a study on the legal possibilitiesfor e-lending under the present public lending right provisions at both national (i.e.Dutch) and European level. The study was jointly carried out by SEO EconomicResearch and the Institute for Information Law (IViR). On 26 February 2013, theMinister formally submitted the report (‘E-lending by public libraries:  exploringlegal possibilities and economic effects’) to the Dutch Parliament.The study defines ‘e-lending’  as the digitally and temporarily making available ofe-books  by  public  libraries  by  way  of  an  online  lending  facility,  throughdownloading,  streaming  or  comparable  transmission  methods.  In  the  first  part  ofthe study,  current practices in the Netherlands,  the United States,  the UnitedKingdom and Germany are briefly discussed to examine what is already happeningwith regard to e-lending.Apparently, e-lending is most advanced in the US, but practices are also rapidlydeveloping in Germany and the UK. However, in none of the studied countries, e-lending activities rely on a statutory copyright or lending right exception, althoughin the UK recent amendments to the definitions of the Public Lending Right Act bythe Digital Economy Act seem to enable a (limited) form of e-lending by publiclibraries under the Public Lending Right Scheme. The implementation of the newrules has however been postponed.Secondly, the legal part of the report analyses whether the existing public lendingright system of the Dutch Copyright Act (Auteurswet) covers e-lending by publiclibraries. This system converts the exclusive lending right of the rightholder into aremuneration  right.  The  study  examines  both  the  legislative  history  and  thewording of the relevant provisions. This makes clear that, although the subjectmatter of the lending right has been gradually expanded to other materials thanbooks  (such  as  CD-ROMs),  still  only  information  carriers  in  physical  form(‘exemplars’)  are  covered  by  the  public  lending  right.Next, the study assesses whether the European copyright framework allows for theintroduction of an exception at the national level. Interestingly, the proposal for theRental and Lending Right Directive explicitly excluded making available by way ofdownloading from its scope, despite recognizing electronic lending as a futurepossibility.  In  addition,  the  European Commission  described the  object  of  thelending right as objects that incorporate protected works or performances, whichpoints in the direction of physical reproductions. Moreover, the subject matter ofthe lending right refers to originals and copies of protected works. In scholarlyliterature, this has been interpreted as material exemplars.In sum, the current derogation from the exclusive lending right does not seem toaccommodate  e-lending.  Therefore,  since  e-lending  can  be  classified  under  thegeneral  making  available  right,  the  report  also  looks  at  the  specific  libraryexceptions of the EU Copyright Directive (‘Infosoc’), which provides for a closedcatalog of exceptions. Yet, only making available on site via terminals in the libraryseems to be covered by Article 5(3)(n), which leaves no space for the introductionat  the  national  level  of  a  copyright  exception  for  online  e-lending  (that  is,borrowing over the Internet from the home).In conclusion, neither current Dutch copyright law nor the EU legal frameworkseems to leave room for e-lending without rightholder permission. Of course, thisdoes not mean that libraries cannot lend e-books, merely that this practice is notcovered  by  a  copyright  exception  at  the  moment  and  therefore  requiresagreements  with  authors  and  other  right  holders.Lastly,  the  economic  part  of  the  study  examines  both  potential  positive  andnegative consequences of e-lending for market players. On the one hand, thestudy considers that e-lending by public libraries might present economic risks forcommercial parties. On the other hand however, the report asserts that libraries’online  offer  might  help  to  familiarize  library  patrons  with  e-books.  By  attractingnew groups of consumers, e-lending could therefore also have a positive effect onthe market.The report finally recommends that the Dutch government refrain from legislativeaction at this early stage, and that e-lending be facilitated through contractualagreements  between the  parties  involved,  as  is  already the  case  abroad.  Animportant  role  is  seen for  collective rights  management  with  regard to  thesecontractual solutions. Furthermore, the statutory instrument of extended collectivelicensing (ECL) is put forward as a suggestion if the mandate of collective rightsorganizations would prove to be structurally deficient to lead to reliable contractualsolutions permitting e-lending by public libraries.KB, VB  

Can e-lending land itself a spot under the public lending right?

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Can e-lending land itself a spot under the public lending right?

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