e-BOOKS AND SECURE DIGITAL LENDING IN EUROPEAN LIBRARIES. Comparative Analysis under National and International Law

On November 10, 2016, the Court of Justice of the European Union (CJEU) issued a landmark ruling in the Vereniging Openbare Bibliotheken (VOB) case. The ruling recognised that, on the basis of the Rental and Lending Directive (RLD), the concept of “lending” within the meaning of the Directive’s provisions covers the lending of digital copies of books (e-Books). As a consequence, lending carried out by libraries covers the lending of both paper books and their electronic versions. The ruling indicates that to be able to perform lending (and e-Lending), a library must have obtained its copies of a book from a lawful source.

For libraries to make a reality of e-Lending, they need first to have a digital copy to lend. Potential options are that a library acquires the legal rights to lend such an electronic copy, for example from statute or via case law, uses it under a licence from the rightsholder (both of which imply that copies lent by a library are born digital), or it digitises a paper book for the purpose of e-Lending. In practice, however, library ownership of the rights over born-digital copies is not (yet) widespread. Rightsholders usually do not choose to conclude licence agreements with libraries that allow ownership, and they apply licensing provisions or technological protection measures that restrict libraries from lending e-Books freely. 

The VOB ruling did not provide an explicit indication that a library may circumvent technical protection measures, or that it may ignore licences of an existing e-Book available in the marketplace. Neither did it evaluate whether libraries can copy paper books for the purpose of e-Lending. Nonetheless, the model proposed in this report, which envisages a library making a digital copy of a paper book, has the potential both to provide a means of e-Lending books, as well as to provide a backstop provision where rightsholders are either unwilling to offer libraries acceptable licence terms for e-Books or to grant them permission to create their own e-Books.

The digitisation of paper books for e-Lending has become known as Controlled Digital Lending (CDL) in the USA. Due to differences between legal systems, for the purposes of this report we will refer to e-Lending based on paper books digitised by libraries in Europe as (independent) Secure Digital Lending, or (i)SDL. The European e-Lending model proposed by us is based on the flexibility of copyright law arising from Article 6 of the Rental and Lending Rights Directive (RLD) and Article 5(2)(c) of the InfoSoc Directive, interpreted in accordance with the fundamental rights of the beneficiaries of these exceptions. The use of the letter “i” is intended to indicate that this type of e-Lending is based on books that are digitised or otherwise created by a library; it is not based on licence agreements related to the use of e-Books. Both CDL and (i)SDL are conceptually based on an important restriction, according to which a library can e-Lend as many electronic versions of books as it has paper copies. In other words, it must use the one copy - one user model. 

This aligns with the model that was seen as permissible under the VOB ruling. According to this, the concept of lending encompasses both the lending of physical copies and digital books. The concept can be considered an autonomous concept of EU law developed in the case law of the CJEU.

KEY TAKEAWAYS

Context & Legal Background

• The discussion about e-Lending by libraries in Europe is essential for regulating their activities in the digital world.
• The 2016 Vereniging Openbare Bibliotheken (VOB) ruling by the Court of Justice of the European Union confirmed that “lending” under EU law includes digital lending of e-books by public libraries.

The (i)SDL Model Explained

• The report looks at the (i)SDL (independent Secure Digital Lending) model, where libraries lend a digital copy of a book they legally own. This model follows the “one copy – one user” rule and does not generate direct profits for libraries. It relies on libraries’ rights to digitise books, but laws on digitisation vary between countries.
• The report argues that libraries should be able to offer e-Lending under the (i)SDL model without needing permission from rights holders, as this supports access to knowledge and human rights.

Current Legislative Gaps & Privacy Concerns

• Most countries currently lack clear laws allowing e-Lending by libraries, especially under the (i)SDL model. Where e-Lending exists, it is mostly based on licenses.
• License-based e-Lending may raise concerns about user privacy, as it can involve sharing personal data with publishers. The (i)SDL model avoids these issues by protecting user privacy.
• The report suggests that existing laws are unclear or insufficient. The lack of action may be due to assumptions about the VOB ruling or pressure from political or publishing interests.

Recommendations for Legal Reform

• Legal changes are needed to allow libraries to fully operate in the digital environment, including enabling e-Lending as per the VOB ruling. These changes should be neutral to technology, mandatory, and protect both libraries’ right to digitise and users’ privacy.
• The ultimate goal should be to create laws that allow large-scale digitisation of resources and broader online access, while ensuring that any solutions, including licensing, protect user rights.

The study was conducted by Centrum Cyfrowe in partnership with the Future Law Lab flagship project within the Priority Research Area Society of the Future under the Strategic Programme Excellence Initiative at Jagiellonian University.

The publication is issued as part of the Knowledge Rights 21 project, funded by Arcadia - a family charitable foundation, through the Knowledge Rights 21 (KR21) programme of the Stichting IFLA Foundation.