Top EU Court Advisor Makes A Strangely Sensible (But Only Provisional) Copyright Ruling On The Lending Of eBooks
from the evolutionary,-not-revolutionary dept
The Court of Justice of the European Union (CJEU), the EU’s highest court, has a slightly unusual procedure for delivering its judgments. After a case has been referred to it by a national court, one of the CJEU’s top advisors, known as an Advocate General, offers a preliminary opinion. This is meant to provide guidance to the judges considering the case, and generally indicates how the CJEU will rule. But it is by no means binding, and judges have been known to go completely against the advice offered to them. Let’s hope that doesn’t happen in a copyright case currently before the EU court.
The library association of the Netherlands wants to lend out ebooks as well as the dead-tree kind, but is concerned that the relevant EU directive on the rental and lending rights of books does not cover the digital ones. So it decided to take pre-emptive legal action against the Dutch organization tasked with collecting payments for authors, seeking a declaratory judgment from the court that it could indeed lend out ebooks without any problems. Since deep questions of EU law were involved, the District Court of The Hague in the Netherlands referred the case to the CJEU. That, in its turn, triggered a preliminary response from Advocate General Szpunar (pdf) as follows:
In today’s Opinion, Advocate General Maciej Szpunar takes the view that the making available to the public, for a limited period of time, of electronic books by public libraries may indeed come within the scope of the directive on rental and lending rights.
He points out that the reason ebooks aren’t mentioned in the EU directive is that the technology was still in its infancy, and so the question wasn’t considered by the lawmakers.
He thus suggests that a ‘dynamic’ or ‘evolving’ interpretation of the directive should be applied, arguing, inter alia, that the lending of electronic books is the modern equivalent of the lending of printed books. According to the Advocate General, such an interpretation alone will be capable of ensuring the effectiveness of the legislation in question in a sector experiencing rapid technological and economic development.
Recognizing that the law needs to be interpreted in a way that takes account of technological change ought to be simple common sense. But in the backward-looking world of copyright law, it isn’t — even the tiniest advance has to be fought for, and can take years of effort. So the Advocate General’s clear statement of that principle here is welcome. Of course, there’s still plenty that could go wrong before this sensible view actually helps the group that asked for it. First, the CJEU must weigh in. As mentioned above, it would be surprising — very surprising in this case — if it diverged from the views of the Advocate General, but it could happen. After that, the case will be sent back to the District Court of The Hague to make the final ruling. Who knows? In a few years’ time, EU libraries might even be given formal permission to lend out ebooks.