In recent years, the Court of Justice of the European Union (CJEU), Europe’s highest court, has made three important rulings concerning digital library activities in Europe.
The first of the three CJEU rulings took place in 2014, and originated in Germany in a case known as ‘TU Darmstadt’ (Case C-117/13). The ruling in TU Darmstadt is seen as a significant boost for European libraries to digitize works in their collections and to make them available in library reading rooms.
In November 2016, in cases that began in the Netherlands and France, two equally important issues were adjudicated by the Court: the lending of e-books by libraries, and author consent for the digital exploitation of their works.
In this guest blog for EIFL, Vincent Bonnet, Director, European Bureau of Library, Information and Documentation Associations (EBLIDA) and Barbara Stratton, Chair, EBLIDA Expert Group on Information Law, discuss the two most recent cases, and examine what they mean for libraries in Europe and beyond.
Vereniging Openbare Bibliotheken (VOB) v Stichting Leenrecht (Case C-174/15) on the lending of e-books by libraries
The parties were the Vereniging Openbare Bibliotheken (VOB), the Dutch public library association and Stichting Leenrecht that collects and distributes payments for the public lending right (PLR) in the Netherlands. PLR gives authors and publishers the right to control and/or receive payment for the lending of their books.
VOB took the case to seek clarity on whether digital lending is permitted by the relevant provisions in the Dutch copyright act (VOB believed that it was), and that libraries were not required to obtain a licence explicitly covering e-lending.
In other words, the Court of Justice was asked to consider whether libraries are permitted by law to lend e-books in their collections and, if yes, under what conditions. (Specifically the court was asked to address four questions concerning interpretation of certain articles in two European Directives - Articles 1, 2 and 6 of the Rental and Lending Directive 2006/115/EC and Article 4 of the Information Society Directive 2001/29/EC).
The case concerned e-books that have lawfully entered the library’s collection - in the main born-digital works - and whether libraries can lend such e-books to the public. (The issue of works retro-digitized by libraries was dealt with in the TU Darmstadt case).
The judgment in the VOB case
The judgment in the VOB case, issued on 10 November 2016, affirmed the VOB’s question that statutory provisions in Dutch copyright law allowing the lending of physical books also includes digital lending and that, as provided by Dutch law, it includes the lending of commercially available e-books.
In other words, the Court held that the 2006 European Rental and Lending Directive, that governs lending of physical books in the EU, applies also to e-lending.
However for these statutory provisions to apply, certain conditions must be met. First, e-books must be treated in the same way as physical books i.e. e-lending can only take place on a one-copy one-user model. Second, the original copy must be from a lawful source.
In addition, Member States can decide whether they wish to make e-lending conditional upon the first sale of the digital book within the European Union, that is, to restrict e-lending to e-books on sale in the European market.
What does the ruling mean for libraries?
In essence, the ruling means that libraries are not necessarily required to obtain a publisher licence for the activity of e-lending. However, while the ruling has the potential to widen the scope of digital library services e.g. by giving libraries the right, where permitted in national law, to lend a lawfully acquired e-book, significant gaps remain.
First, the Court did not address the wider issue that unlike physical books, there is no automatic right for a library to purchase an e-book on sale on the market. So when a publisher agrees to sell an e-book to a library, the library is bound (usually) by the terms of the licence including restrictions, or prohibitions, on lending.
Second, since the Court was limited to answering the specific questions put to it, it only partially addressed other restrictions faced by libraries e.g. the issue of remote e-lending (allowing a registered library user to download an e-book through the secure library online platform from home, for example).
Third, because the ruling permits EU member states to maintain or to introduce diverse rules, e-lending will continue to be treated differently in different countries. For example, in some countries e-lending is permitted by law e.g. the Netherlands. In others, libraries are required to obtain a licence (recently legislated for in the UK).
Nevertheless, libraries welcomed the ruling that sets an important principle for library e-lending. In particular, libraries support the Court’s dynamic interpretation of the 2006 Rental and Lending Rights Directive so that copyright law adapts to technological developments and new forms of distribution, such as e-books.
At a time when the EU is seeking to improve access to online content across borders, libraries believe that e-lending really needs to be dealt with by the legislator to properly and conclusively address all the problematic issues.
While it is unclear how the CJEU ruling will influence in practice the development of the e-book environment for libraries, it does give support to libraries’ campaign work to ensure that library users can continue to enjoy access to a wide range of reading material in the digital environment.
EBLIDA is advocating, as part of EU copyright reforms, for an EU-wide mandatory exception in copyright law that allows libraries to purchase, without restriction, any e-book distributed for public sale and to lend it to the public on-the-spot or remotely.
Additionally, in order for the exception to function properly, the law needs to protect the exception from contract terms and technological protection measures that restrict the exercise of such an exception.
AUTHORS MANAGING THEIR RIGHTS
Soulier and Doke v Prime Minister and Minister of Culture and Communication (Case C-301/15) on author’s consent in the management of their digital rights
The case stems from a new law introduced in France in March 2012 regarding the digital use of books that are out-of-print or out-of-commerce, (defined as books published before 1 January 2001).
The 2012 law introduced an exception to authors’ rights for a licensing scheme that granted an approved collective management organisation (CMO) (that exercises copyrights on behalf of authors) the right to authorize the reproduction and communication to the public in digital form of out-of-print and out-of-commerce books.
While authors (or their heirs) were allowed to opt-out of the collective licensing scheme, there was no requirement to actually inform authors about the proposed use of their works. In addition, the new exception is not provided for in the EU Information Society Directive 2001/29/EC.
Two professional authors, Marc Soulier (also known as Ayerdhal) and Sara Doke sought the annulment of the collective licensing scheme.
The Court of Justice was asked to consider whether the new law conflicts with Articles 2(a) and 3(1) of the Information Society Directive.
The judgment in the Soulier and Doke case
On 16 November 2016 the Court issued its ruling with two key findings.
First, the Information Society Directive precludes national legislation from authorizing the digital reproduction of ‘out-of-print’ books in breach of the exclusive rights of authors. Therefore digitizing such works without first informing authors is a copyright infringement.
Second, national legislation must guarantee the protection accorded to authors by the directive. In particular, it must ensure that “every author must actually be informed of the future use of his work by a third party and the means at his disposal to prohibit it if he so wishes”.
However since neither Article 2(a) nor Article 3(1) of the directive specify the way in which the prior consent of the author must be expressed, the court held that such consent can, under certain conditions, be expressed implicitly.
What does the ruling mean for libraries?
Like all CJEU judgments, the effect is Europe-wide and goes beyond the parties involved in the case. Although libraries weren’t party to Soulier and Doke (unlike the VOB case), the ruling has major implications for libraries and other cultural heritage institutions that undertake mass digitization projects.
The direct outcome means that an author (or their heirs) must always be informed of two things: the proposed use of his or her copyright protected work, and how consent for such use can be withheld. (Bear in mind that having successfully found and informed the author, the absence of a reply might reasonably be understood as 'implicit consent’ having being granted).
Since the issue of consent for the use of copyrighted materials is central to library digitization projects, the implications for libraries are significant.
First, in large-scale digitization projects, it may not be possible or libraries may not have the means to seek consent from each individual author, especially if the project concerns orphan works (where the rightsholder cannot be identified or located).
As libraries know, authors or their heirs are often very difficult to find, especially if the works were never commercially published, the author is no longer professionally active, or if they are deceased.
The ruling therefore is likely to add significant extra costs and complexity to digitization projects, leading to fewer projects being undertaken over time.
At the same time, the Orphan Works Directive 2012/28/EU that was supposed to facilitate mass digitization and online access to orphan works in Europe doesn’t help for large-scale projects, due to its onerous diligent search requirements for copyright clearance.
In the absence of a viable legislative solution for mass digitization and in the light of the CJEU ruling, cultural heritage institutions will need to re-assess the risk of digitizing orphan works for public use.
Second, the value to libraries of Extended Collective Licensing (ECL) schemes, used in some countries as another means to facilitate mass digitization, is reduced. (An ECL is a licence that includes rightsholders who have not granted a mandate to the collective management organization (CMO), but who belong to a category of rightsholder for which the CMO can demonstrate it is a major representative).
This is because the court’s two key findings appear to bring into question the legality of some ECL schemes, including longstanding ECLs popular in Nordic countries. (These schemes are backed by national legislation, and cover works by authors who are not members of the collective that is offering the licence).
More generally, the ruling further limits the freedom of individual EU Member States to legislate independently on copyright. As for France where the case originated, the new law was withdrawn in 2017 and ReLIRE, the national project for digitization of unavailable twentieth century books, was shelved.
As a result, the need for a Europe-wide mandatory exception to allow the digitization of out-of-commerce works by libraries and other cultural heritage institutions is pressing.
EBLIDA and its advocacy partners are seeking to introduce an exception in Europe that would permit the mass digitization and communication to the public of out-of-commerce works in place of, or as a default in the absence of, agreed collective licensing schemes.
Current copyright reform proposals from the European Commission put forward a purely licence-based approach, which, in the view of Europe's cultural heritage institutions, is quite inappropriate for the task in hand.
The need for an exception is especially highlighted by the situation of unpublished works, that for the most part also turn out to be orphan works, for which permission for digitization simply cannot be obtained
Without sensible copyright exceptions permitting mass digitization by cultural heritage institutions at least by default, the gap in the online availability of digitized 20th century works (known as the 20th century black hole) is set to continue to the detriment of everyone in the value chain: readers, researchers, the authors whose forgotten works might have been re-discovered and the publishers who might have re-published the works.
Vereniging Openbare Bibliotheken (VOB) – lending e-books to the public (2016)
- Judgment C-174/15 - Vereniging Openbare Bibliotheken
- EBLIDA briefing on the e-lending judgement of the CJEU 19 January 2017
- CJEU: Landmark decision on digital lending of e-books by Nils Rauer and Eva Vonau, Lime Green IP News, Hogan Lovells 15 November 2016
Soulier and Doke – collective management of digital rights (2016)
- Judgment C-301/15 – Soulier and Doke
- limegreenipnews.com/2016/11/cjeu-exceptions-of-infosoc-do-not-cover-out-of-commerce-works CJEU: Exceptions of InfoSoc do not cover out-of-commerce works by Nils Rauer and Eva Vonau, Lime Green IP News, Hogan Lovells 18 November 2016
- The CJEU decision in Soulier: what does it mean for laws other than the French one on out-of-print books? by Eleonora Rosati, IPKat, 17 November 2016
TU Darmstadt – retro-digitsation by libraries (2014)
- Judgment C-117/13 - Technische Universität Darmstadt v Eugen Ulmer KG
- EIFL webinar: The 'TU Darmstadt' case - a landmark ruling for libraries