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.

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  • identicon
    I.T. Guy, 17 Jun 2016 @ 12:32pm

    "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."

    If that happened here the Pro-IP crowds heads would explode.

    reply to this | link to this | view in chronology ]

    • icon
      Avatar28 (profile), 17 Jun 2016 @ 2:14pm

      Re:

      Assuming that by "here" you mean the United States, libraries already routinely lend e-books out. They're time limited so that they stop working after a couple of weeks but you can check them out an additional time, just like a dead tree version.

      reply to this | link to this | view in chronology ]

  • icon
    TheResidentSkeptic (profile), 17 Jun 2016 @ 12:53pm

    We'll need much bigger e-readers

    As every 100KB book lent out will have 1.21GB of "DRM" and other protective code on it to prevent it being copied/shared again; and built-in delete code to remove it from the device at the end of the 24-hour lending period; and code to detect when/where it is read and by whom...

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Jun 2016 @ 1:44pm

    He thus suggests that a 'dynamic' or 'evolving' interpretation of the directive should be applied,

    Says everyone after seeing that a currently written law is something they do not agree with.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 17 Jun 2016 @ 5:03pm

      Re:

      Or someone who sees that a law isn't being applied equally due to the fact that when it was first passed the technology involved wasn't advanced or even present, such that it wasn't even considered when the law was written.

      Speaking of 'dynamic' interpretations though, if those are out then it would seem the first order of business should be rolling back copyright terms to the original durations. The writers of the law decided that 14+14 years(or whatever the european equivalent is) was plenty, so clearly 28 years should be the max, no need for the effectively eternal life plus several decades. If they meant for copyright to last effectively forever then they would have said so in the law, and since they didn't, time to roll the duration back.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 17 Jun 2016 @ 6:49pm

      Re:

      Like you whiners and how the DMCA doesn't ream the asses of pirates (read: grandmothers whose IP addresses you happened to harvest from their non-existent computers) hard enough?

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Jun 2016 @ 4:17am

    Not So Much Whether as When

    Libraries in the the US "lend" e-books all the time. In addition to self-destructing files, i.e., access-killing DRM, mentioned previously there's another, wackier catch. The license from the publisher allows only a small, finite number of "check-outs" before the license must be renewed (repurchased) by the library. Publishers like to pretend that e-books should be treated like real books and "wear out" after a certain number lendings. Lawyers - is there anything they *can't* do?

    reply to this | link to this | view in chronology ]

  • identicon
    IsabelG, 18 Jun 2016 @ 8:45am

    As the article explains, the issue was not whether e-books could be lent out by the libraries -which is done all over Europe- but whether they could be treated as paper books, for which

    under that EU law, libraries are given a special "public lending" exemption from copyright law, where an author is granted exclusive rights to authorize – and prohibit – rentals or loans of their work. That exemption holds so long as authors are fairly remunerated.

    http://www.theregister.co.uk/2016/06/16/ebooks_same_as_printed_says_ecj_advisor/

    reply to this | link to this | view in chronology ]


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