Advisor to the Court of Justice of the EU: copyright law must evolve with technology

Johan van Oldenbarnevelt verschijnt voor zijn rechters
An important step forward for libraries
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While the European Commission is still busy determining what changes to propose to the EU copyright framework this fall, some stakeholders have decided that instead of waiting for an update of the EU copyright rules (that is at least four years away), they are better of attempting to expand the existing rules. Last year the Dutch Association of Public Libraries (VOB) started a legal procedure against the Dutch organization tasked with distributing to authors the remuneration that libraries pay for lending out books (Stichting Leenrecht).

In addition to paper books, the VOB wants to lend out e-books, but is concerned that the EU directive on the rental and lending rights of books does not cover digital lending. Instead of waiting for an update to the directive, the VOB decided to go to court to clarify the issue. The Dutch Court subsequently referred the case to the the Court of Justice of the European Union (CJEU) and asked it to answer the question if digital lending is covered by the Rental and Lending Rights Directive.

While the court’s decisions in the VOB vs Leenrecht case is not expected until late this year, Advocate General (AG) Maciej Szpunar delivered his opinion last Thursday. In its opinion AG Szpunar advises the CJEU to rule that art 1(1) of the Rental and Lending Rights Directive must be interpreted to include the right to lend electronic books included in a library’s own collection. While AG opinions generally offer a good indication of how the Court will decide, they have no direct effect and it is important to remember that the court can also come to a different conclusion than the AG. This of course is exactly the outcome that the VOB had hoped for and as such this AG opinion represents an important step in the fight of libraries to be allowed to adopt their activities to the digital environment.

This conclusion is not the only remarkable fact about AG Szpunar’s opinion. As others have already observed, the opinion is also ‘beautifully written‘ and based on ‘strangely sensible‘ reasoning. This praise is directed towards those sections of his opinion in which the AG touches on the relationship between a static legal framework and the quickly evolving technological realities and roles of public libraries. To arrive at his conclusion, Szpunar argues that any interpretation of the law must take into account technological and societal progress:

An interpretation of this kind, which might be described as ‘dynamic’ or ‘evolving’, is, in my opinion, necessary, particularly in fields where technological progress has a profound effect, such as copyright. Indeed, technological progress today is so rapid that it easily outstrips the legislative process, such that attempts to adapt legal provisions by that means are often defeated, with legal acts becoming obsolete the moment they are adopted or shortly thereafter. Directive 2006/115 is itself a perfect illustration of the phenomenon. Its provisions on renting, which were intended to regulate the market for the renting of cassettes, CDs and DVDs, are now outdated because the renting of phonograms and videograms, at least on the European market, has all but given way to online availability. […] In such cases, only an adjusted judicial interpretation will be able to ensure the effectiveness of the legislation in question in a sector experiencing such rapid technological and economic development. (para 28)

He goes on to explain why he considers electronic lending no different from the lending of paper books:

However, what is in my opinion decisive is the objective element: in borrowing a book, either traditional or electronic, from a library a user wishes to acquaint himself with the content of that book, without keeping a copy of it at home. From that point of view there is no substantial difference between a printed book and an electronic book or between the methods by which they are lent. (para 31). The interpretation of Directive 2006/115 must therefore take that reality into account and align the legal framework for the lending of electronic books with that for the lending of traditional books (para 32)

He then continues by addressing objections that including electronic lending in the scope of the Rental and Lending Rights Directive would somehow be detrimental to the interests of authors:

Secondly, the main purpose of copyright is to protect the interests of authors. It is not by chance that, in the main proceedings, the organisations which represent the interests of authors, Lira and Pictoright, have intervened in support of the form of order sought by VOB. This might seem paradoxical, but it is a consequence of the market forces which currently prevail in the field of lending electronic books. (para 33)

Indeed, such a market does exist and libraries do indeed lend books in electronic form. However, since this type of lending is not regarded as being covered by the concept of lending for the purposes of Directive 2006/115, it cannot benefit from the derogation for public lending provided for in Article 6(1) of the directive. The lending of electronic books is therefore arranged under licensing agreements concluded between libraries and publishers. […] According to the assertions of Lira and Pictoright, these contractual relationships are principally of benefit to publishers or other intermediaries in the electronic book trade, while no adequate remuneration is received by authors. (para 34)

If, on the other hand, digital lending were regarded as falling within the scope of Directive 2006/115 […] authors would as a result receive remuneration, in accordance with the requirement laid down in that provision […] (para 35)

Not only would an interpretation of Directive 2006/115 according to which digital lending fell within the concept of ‘lending’ not be detrimental to the interests of authors, it would also make it possible for their interests to be protected better than they can be in the current climate, which is governed solely by the laws of the market. (para 36)

In other words the only ones benefiting from not allowing electronic lending under the Rental and Lending Rights Directive are publishers and other intermediaries. With this fairly fundamental observations AG Szpunar echos a trope that has been showing up in more discussions recently. When it comes to defining the balance in copyright there is no natural alignment between publishers and authors (whose interests often align with those of users and the general public).

Finally, AG Szpunar also offers some very welcome perspectives on the role of libraries (and mutatis mutandis other cultural heritage institutions) in the digital environment:

Today, in the digital age, libraries must be able to continue to fulfil the task of cultural preservation and dissemination that they performed when books existed only in paper format. That, however, is not necessarily possible in an environment that is governed solely by the laws of the market. First, 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. That applies especially to libraries operating in disadvantaged areas, where their role is most important. […] (para 38)

Without the privileges which flow from a derogation from the exclusive lending right, libraries are therefore in danger of no longer being able to perpetuate, in the digital environment, the role which was always theirs in the era of printed books. (para 39)

We obviously could not agree more here. The special role of libraries and other cultural heritage institutions has long been recognized by the EU copyright framework. Unfortunately, the copyright rules have not evolved in line with the changes in how we access culture and information that have occurred over the past 15 years. Given this, it is high time to provide Europe’s cultural heritage institutions with the copyright rules that they deserve. While we hope that in adopting AG Szpunar opinion the CJEU will enable electronic lending, it is the Commission’s turn to come forward with proposals that would allow online access to out of commerce works in the collections of cultural heritage institutions.

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