Another interesting decision by the European Court of Justice regarding the e-lending of digital content through libraries:

“The lending of an electronic book (e-book) may, under certain conditions, be treated in the same way as the lending of a traditional book.

In the Netherlands, the lending of electronic books by public libraries does not come under the public lending regime applicable to traditional books. At present, public libraries make electronic books available to the public via the internet, on the basis of licensing agreements with right holders. […]

In today’s judgment, the Court of Justice first notes that there is no decisive ground allowing for the exclusion, in all cases, of the lending of digital copies and intangible objects from the scope of the directive [A 2006 EU directive concerning, among other things, the rental and lending rights in respect of books provides that the exclusive right to authorise or prohibit such rentals and loans belongs to the author of the work.]. That conclusion is, moreover, borne out by the objective pursued by the directive, namely that copyright must adapt to new economic developments. In addition, to exclude digital lending entirely from the scope of the directive would run counter to the general principle that a high level of protection is required for authors.

The Court then goes on to verify whether the public lending of a digital copy of a book under the ‘one copy, one user’ model is capable of coming within the scope of Article 6(1) of the directive. […]

In the present case, the Netherlands legislation requires that the digital copy of a book made available by the public library must have been put into circulation by a first sale or other transfer of ownership of that copy in the EU by the holder of the right of distribution to the public or with that holder’s consent. According to the Court, such an additional condition must be considered to be in accordance with the directive.”

I am not a lawyer, but I would read this decision as follows:
– A digital copy of an e-book must be legally obtained by the library,
– E-Lending under a one copy/one user model is legal without a separate licensing agreement,
– The renumeration of the use is paid directly to the author via collecting societies, and not paid to the publisher on basis of a license agreement!

Taking into account the devastation condition of the collecting society VG Wort in Germany (and the verdict to repay 100 Mio. EUR of publishers’ earnings back to their authors), this is yet another very serious and challenging news for EU publishers.

Whether publishers will provide digital copies to libraries under this interpretation of the directive needs to be seen. The worst cast, provoked through this decision, could be that digital content will not be made available to readers by public libraries due to the lack of publishers, supporting digital e-lending under these conditions.