Does a library have the same right to lend an e-book that it does with print? That question is very much up for debate in Europe, where e-book lending has not been so open as in the USA. Not every publisher in Europe has been willing to sell e-books to libraries. Libraries in Europe were not even certain that it was legal to lend e-books and, it was argued, libraries should not be able to do so unless they had a license from the rights holder specifically allowing circulation. A case before the Court of Justice of the European Union (CJEU) may settle the matter. The outcome so far is looking good for libraries. Advocate General Maciej Szpunar has released an opinion, currently under review by the CJEU, holding that e-books should be covered under the same lending right as print.
As Nils Rauer and Eva Vona explain, "The dispute that led to the request as submitted by the Dutch court arose between the library society Vereniging Openbare Bibliotheken (VOB) and the collecting society Stichting Leenrecht. In the Netherlands, public libraries are required to obtain a license for lending e-books. VOB aims to introduce a “one copy one user” system. Under such scheme, libraries would be allowed to create and provide a digital copy of an e-book (Reproduction A) on their library server. The library user borrowing the e-book would be granted the option to download a digital copy (Reproduction B). Upon expiry of the lending period, the Reproduction B would become invalid and not accessible anymore. Moreover, during the time that the e-book has been lent out, no other library user could download a copy of the same e-book."
What seems like common practice to those used to libraries on this side of the Atlantic is in fact radical enough for a court ruling in Europe.
Szpunar's opinion is that the provisions governing library lending rights need to be interpreted dynamically, allowing new formats to be covered, even if they were not mentioned or even heard of when the provisions were originally drafted. He also stresses how library e-book use can benefit authors, perhaps giving them compensation without having to depend upon licensing agreements with publishers (from which, he says, they seldom gain). He also points to the important role libraries play in sharing and preserving as a justification for treating e-books the same as print.
Rauer and Vona note that the CJEU will need to balance the publishers' perspective with Szpunar's opinion in their ruling. The European Bureau of Library, Information and Documentation Associations (EBLIDA) and IFLA, while quick to support Szpunar, hope to extend any ruling beyond his opinion: "The European library community notes that the CJEU Advocate-General’s Opinion challenges some current national laws and programmes for e-lending, but the question of market distortion, whereby publishers may refuse to make e-book titles available to libraries for lending, remains unsolved. Should the Court uphold the AG’s Opinion, we stand ready to provide expertise and support to legislators to bring about inclusive legislation which meets library patrons’ expectations and offers legal certainty for all."
RF offers its support (however distant we are and how little it may help) to our library friends in EBLIDA and IFLA. We hope that we might hear more about this situation at the upcoming IFLA conference in Columbus, OH. We have European members. If we can do anything to help, please reach out. This case should be a rallying point for all librarians and inspire us to extend our efforts to ensure access to e-content in every continent. While the situation is better in the USA than in Europe, to judge at least from this case, our fight to get access under improved business models and to have e-books treated as much under copyright with as few problematic licensing restrictions as is feasible is far from over. How might our copyright laws be enhanced to improve access to library e-book lending? And might we also learn something? Should more of us investigate in our own libraries, or at least support the many consortial efforts underway for libraries to have e-books on library servers, negotiating with rights holders for better access? Would some authors offer simultaneous use? Would some publishers offer better pricing or access terms directly to libraries? The e-content world is young and we need constantly to explore and advocate.