By Heini Järvinen

In 2015, the Dutch Association of Public Libraries (VOB) started a legal procedure against Stichting Leenrecht, the organisation distributing the remuneration to authors that libraries pay for lending books in the Netherlands. The purpose of the case was to clarify if the European Union’s Rental and Lending Rights Directive covers the lending of electronic books. The District Court of The Hague, Netherlands, referred the case (Vereniging Openbare Bibliotheken v Stichting Leenrecht, C-174/15) to the the Court of Justice of the European Union (CJEU).

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On 16 June 2016 Advocate General Maciej Szpunar delivered his Opinion, and advised the CJEU to rule that Article 1(1) of the Rental and Lending Rights Directive must be interpreted in the sense of including the right to lend electronic books.

The Advocate General’s Opinion states that it is unquestionable that, at the time of the adoption of the Directive, e-books were not intended to be included in the Directive’s concept of lending, because the technology relating to e-books was at that time only in its infancy. However, this does not mean that e-lending should be excluded from the scope of the Directive. It is indispensable to take into account the evolution of technology, market and behaviour, especially in areas strongly influenced by technological progress, such as copyright.

According to the Advocate General, the main objective of copyright is to safeguard the interests of authors, not the publishers. Including e-lending in the definition of “lending” would not harm the interests of authors, but would on the contrary allow a better protection of their interests. Currently libraries lend books in electronic format, usually under licensing agreements concluded between libraries and publishers. This benefits first of all publishers or other intermediaries, while authors receive no adequate remuneration.

The Opinion also points out that literary creation is not just an economic activity, and that the importance of books for the preservation and access to culture and scientific knowledge has always prevailed over mere economic considerations.

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,

the Opinion states.

The CJEU’s decision in the case is expected later in 2016.

Request for a preliminary ruling from the Rechtbank Den Haag (Netherlands) lodged on 17 April 2015 — Vereniging Openbare Bibliotheken v Stichting Leenrecht (Case C-174/15)
http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:62015CN0174&from=EN

Advocate General’s Opinion in Case C-174/15 Vereniging Openbare Bibliotheken v Stichting Leenrecht
http://curia.europa.eu/jcms/upload/docs/application/pdf/2016-06/cp160064en.pdf

Advisor to the Court of Justice of the EU: copyright law must evolve with technology (21.06.2016)
https://www.communia-association.org/2016/06/21/advisor-court-justice-eu-copyright-law-must-evolve-technology/

AG Szpunar says that time-limited e-lending is allowed under EU law and interpretation of copyright norms must evolve with technology (16.06.2016)
https://ipkitten.blogspot.be/2016/06/ag-szpunar-says-that-time-limited-e.html

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