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EU court adviser backs libraries' right to lend e-books

Libraries in the EU should be able to loan out electronic books (e-books) in the same way as physical books, according to a legal adviser to the EU's highest court.

Advocate general Maciej Szpunar said that the existing EU laws governing rental and lending rights should be interpreted in a "dynamic" way. The only reason that the EU's directive on copyright relating to rental rights and lending rights does not explicitly make reference to e-books is that "the technology for commercially viable electronic books was ... only in its infancy" when the text of the directive was finalised in 2006, he said.

"I take the view that it is imperative to give legal acts an interpretation which takes into account developments in technology, markets and behaviour and not to fix such acts in the past by adopting too rigid an interpretation," he said.

"An interpretation of this kind, which may be described as 'dynamic' or 'evolving', is, in my opinion, necessary, particularly in fields where technological progress has a profound effect, such as copyright …The anachronistic character of obsolete legal rules is a common source of interpretative problems, uncertainty and juridical lacunae. 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," he said.

The Court of Justice of the European Union (CJEU) has been asked to rule in a Dutch case, brought by Vereniging Openbare Bibliotheken (VOB) against the Dutch government. VOB is an association representing Dutch public libraries. In the Netherlands, libraries operate a 'one copy, one user' policy through which e-books can be 'checked out' by a single reader at which point they will become unavailable to other readers. Once 'checked in', the book is made available to the public again and the copy on the previous reader's device stops working.

VOB has argued that its approach effectively mimics that of lending physical books, which is permitted by virtue of the lending rights directive. Through the directive, libraries are given a special 'public lending' exemption from copyright law as long as the author is fairly remunerated. Stichting Leenrecht, the Dutch government agency which collects this remuneration on behalf of authors, disputes this position.

In his opinion to the CJEU, advocate general Szpunar said that the main purpose of copyright law was to "protect the interests of authors". Interpreting the lending rights directive in such a way as to cover electronic books would mean that authors would receive adequate remuneration, as required by the directive, to cover this type of lending, he said.

"Not only would an interpretation of [the lending rights directive] 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," he said.

"In so far as the exclusive lending right is concerned, its objective is to ensure that authors receive adequate remuneration from this form of exploitation of their works. Given that the exploitation of electronic books by way of lending is a reality, it seems to me entirely coherent for that form of lending to be included within the scope of the exclusive lending right," he said.

The advocate general heard evidence that libraries which lend out electronic books tend to do so under licensing agreements entered into with publishers. These contractual relationships were "principally of benefit to publishers or other intermediaries in the electronic book trade, while no adequate remuneration is received by authors", he said in his opinion.

The case will now proceed to the CJEU for judgment. Opinions of advocate generals are not binding on the court, but are followed in the majority of cases.

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