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June, a Month to Celebrate Libraries: CJEU Advocate General Issues e-Lending Opinion & C4C Welcomes the Dutch Association of Public Libraries

C4C is proud to announce that the Dutch association of public libraries (VOB – ‘Vereniging van Openbare Bibliotheken’), represents about 170 member organisations in the Netherlands ranging from public libraries, provincial support organisations to library suppliers, signed on to our Declaration which promotes a copyright framework that fosters creativity, innovation, education, competitiveness and access to culture.

Francien van Bohemen, in charge of the VOB’s public affairs & relations, considers that “copyright needs to be renewed”, because “access to information for people, their personal development and that of society are at stake”. Therefore, the VOB decided to join C4C, “to work together to establish a new framework for copyright because the public library cannot fulfil its legal obligations in society in the digital world with the current copyright framework”.

One example of how public library struggle to fulfil their role in the 21st century due to the copyright framework revolves around e-lending. Unlike paper books, which fall under the public lending right, currently public library’s ability to lend e-books is subject to publishers’ willingness to negotiate licensing agreements. Therefore, in 2013 the VOB raised the question to the District Court of The Hague if e-books should also fall under the public lending right. In September 2014, the District Court decided to lodge a request for a preliminary ruling to the Court of Justice of the European Union, sometimes referred to by us as the ‘Court of Common Sense‘.

The District Court’s main question is around the interpretation of the 2006 Rental and Lending Rights Directive, as it is asking the CJEU if the making available to the public, for a limited period of time, of electronic books by public libraries falls within the scope of the lending right. Mid-June, Advocate General (AG) Maciej Szpunar, issued his Opinion in this case. In short, he takes the view that e-lending can fall within the Directive’s scope.

CJEU AG Szpunar starts from the fact that the Directive’s provisions are actually still those adopted back in 1992(!) (§24). In his view, “the anachronistic character of obsolete legal rules is a common source of interpretative problems, uncertainty and juridical lacunae” (§28). Therefore, he considers that “it is imperative to give legal acts an interpretation which takes into account developments in technology, markets and behaviour and not to fix such acts in the past by adopting too rigid an interpretation (§27).

He believes that it is necessary to have a ‘dynamic’ or ‘evolving’ interpretation  of legislation, especially in fields  such as copyright, where technological progress has a profound effect (§28). He thinks that this approach is consistent with the legislator’s intention when adopting EU legislation on copyright, as the Recitals of both the Lending and Rental Rights Directive and the InfoSoc Directive expresses the legislators ‘desire’ to adapt to new technological and economic developments (§29).

In coming to his conclusions, CJEU AG Szpunar takes into account, amongst other things, the observations that:

  • there is no substantial difference between a printed book and an electronic book or between the methods by which they are lent” (§31);
  • licensing agreementsare principally of benefit to publishers or other intermediaries in the electronic book trade, while no adequate remuneration is received by authors” (§34), because “in an environment governed solely by the laws of the market, the ability of authors to protect their own interests depends above all on their negotiating power vis-à-vis publishers“, which results in some obtaining satisfactory terms, while others not (§74);
  • the current climate (…) governed solely by the laws of the market“, so having e-lending fall under the Directive’s scope would make it possible for authors’ interests to be better protected (§36);
  • libraries, and public libraries especially, do not always have the financial means to procure electronic books, with lending rights, at the high prices demanded by publishers” (§38);
  • publishers and intermediaries either contractually limit the opportunities which libraries have of lending electronic books (…) or they refuse to enter into (…) contractual relations with libraries” (§38);
  • “exceptions to copyright must be interpreted strictly”,  as argued by the French Government’s intervention in this case (§46), however the interpretation of exceptions must enable (1) to safeguard its effectiveness and (2) observance of  its purpose (§47);
  • several studies show that traditional or electronic lending of books “does not reduce the volume of book sales but may instead increase it by encouraging reading habits” (§69).

Although all the above makes perfect sense, we need to call upon the CJEU again to help us cross the copyright minefield laid out by those right holders who struggle to think in the interest of creators and consumers, and who keep holding on to outdated views. Those right holders often misrepresent themselves as speaking on behalf of creators. Luckily in this case two organisations stepped-up on behalf of creators to support the VOB’s viewpoint, namely the Dutch collective management organization for (screen)writers, translators and freelance journalists (Stichting LIRA) and the author’s rights organisation for visual creators in the Netherlands (Stichting Pictoright). The Dutch Publishers Association (NUV – ‘Nederlands Uitgevers Verbond’) also decided to intervene in the case to take-up the defence of their licensing solution.

We hope that the copyright reform, expected for the 2nd half of 2016, will:

  1. take a lesson from CJEU AG Szpunar’s Opinion that licensing is not the ‘magical wand’ that some right holders proclaim it to be, and definitely not for creators and consumers; and,
  2. brings some relief before this constant battle preventing copyright to enter the 21st century in more unnecessary casualties. Especially for areas such as (public) libraries, and education and research, as we should not forget that these touch upon the fundamentals of our society and impact not only current, but also future generations.

C4C welcomes the VOB, and together we eagerly await the CJEU’s judgment later this year. In the meantime, we see this as the start of a strong collaboration at the European and national level. For more information, please do not hesitate to contact Caroline De Cock, Coordinator of the Copyright for Creativity Coalition, at +32 (474) 840515, or Francien van Bohemen, in charge of the VOB’s public affairs & relations, at bohemen@debibliotheken.nl.

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