Yesterday, Mrs. Bussemaker, the Dutch Secretary of Education, Culture and Science, presented a report to the Parliament about the online lending of e-books by libraries. Since the Dutch Copyright Act contains a copyright limitation that allows public libraries to lend physical copies of books, it was worth researching the question whether this provision could also be applicable on the so-called ‘e-lending’. It follows from this report that the lending-exception in the Copyright Act only applies to material copies; it does not include e-lending.
Mrs. Bussemaker mainly bases her conclusion on the text and history of the Dutch Copyright Act, the European Rental and Lending Directive and on the general Copyright Directive. These legislative documents all provide a copyright-exception for public libraries; these institutions are allowed to lend copyright protected books in exchange for a small compensation for the benefit of the writers. However, the report states that there is no reason to assume that this legal limitation of copyright also covers the online lending of e-books. Libraries would therefore infringe copyright when they decide to provide e-lending services.
The only currently available solution for libraries to allow e-lending without infringing copyright, would be by concluding contractual agreements between the parties concerned; e-lending in the UK, Germany and the US also proceeds on this basis. The report states that Article 5(3)(n) of the Copyright Directive might also offer some limited space for e-lending; this provision might arguably permit ‘on-site e-lending’. The European copyright framework does not leave room for the introduction of a copyright exception permitting e-lending at a national level though.
However, Mrs. Bussemaker says that she will advocate that the topic ‘e-lending and public libraries’ will be placed on the copyright agenda of the European Commission. It follows from the report that the best chances for libraries to gain permission to lend e-books lie in a revision of the Copyright Directive. The report states that it is ‘thinkable’ that a legal copyright limitation in respect of the online e-lending might be added to this Directive, comparable to the ‘regular’ lending-provision for public libraries.
Read the full report (in Dutch) here. An English summary is included in the document.
Author: Tomas Weermeijer