The matter at hand
The questions referred to the ECJ concern the lending of e-books in the Netherlands. Under Dutch law, the lending of a copy of a book - put into circulation by the rightholder or with his consent - does not constitute an infringement of the copyright in that work, provided that a fair remuneration is paid to the rightholder. For a while, it was generally assumed that the digital lending of electronic books did not fall within the scope of this exception. As a consequence, public libraries made electronic books available via the internet on the basis of licensing agreements with rightholders.
The library association VOB (representing the interests of all public libraries in the Netherlands) brought proceedings before the District Court in The Hague against Stichting Leenrecht (the foundation entrusted with collecting the fair lending remuneration due to authors), seeking declaration that the existing Dutch lending regime also covers digital lending. VOB’s action concerned lending under the ‘one copy, one user’ model, namely the lending of an electronic book carried out by placing that copy on the server of a public library and allowing the user concerned to download it onto his own computer, bearing in mind that only one copy may be downloaded during the lending period and that, after that period has expired, the downloaded copy can no longer be used by that user.
The District Court referred a number of preliminary questions to the ECJ regarding the interpretation of the Rental and Lending Rights DirectiveDirective 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental rights and lending right and on certain rights related to copyright in the field of intellectual property, which provides that the exclusive right to authorize or prohibit rental and lending may be derogated from by Member States in respect of public lending (the public lending exception), provided that authors receive a remuneration. The referring court asked whether the concept of lending (defined as: making available for use, for a limited period of time and not for direct or indirect economic or commercial advantage, through establishments which are accessible to the public) covers the lending of an e-book under the ‘one copy, one user’ model.
The judgment of the ECJ
The ECJ first considers 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 Rental and Lending Rights DirectiveDirective 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental rights and lending right and on certain rights related to copyright in the field of intellectual property (paragraph 44).
The ECJ then verifies 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 the public lending exception (paragraph 49). The ECJ answers the question in the affirmative, “given the importance of the public lending of digital books, and in order to safeguard both the effectiveness of the (…) the public lending exception and the contribution of that exception to cultural promotion”. The exception may therefore also apply “where the lending operation by a library has essentially similar characteristics to the lending of printed works” (paragraph 51). The ECJ considers this to be the case as regards the lending of a digital copy of a book under the ‘one copy, one user’ model (paragraph 53). Obviously, this applies on condition that the digital copy of the book was not obtained from an illegal source (paragraphs 66-72).
Furthermore, the ECJ holds that Member States are allowed to impose stricter conditions than those laid down in Article 6(1) of the Directive “to improve the protection of authors’ rights beyond what is expressly laid down in that provision” (paragraph 61), such as the condition “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 European Union by the holder of the right of distribution to the public or with his consent” (paragraph 62).