• ECJ Facilitates the Lending of E-Books by way of the "One-Copy-One-User" Model 
  • March 3, 2017 | Authors: Viola Bensinger; Christoph Enaux; Stefan Lütje
  • Law Firm: Greenberg Traurig Germany, LLP - Berlin Office
  • On November 10, the European Court of Justice (ECJ) held that the lending of e-books may, under certain conditions, be treated in the same way as the lending of traditional books.
     
    The underlying case was brought before a District Court in the Netherlands by the association of Dutch public libraries against a Dutch collecting society, which collects public lending right payments due to authors from libraries. The plaintiff sought confirmation that the regime for traditional books applies equally to digital lending if the "one copy, one user" model is implemented, i.e. if an e-book is lent by placing that copy on the server of a public library, allowing the user to download only this one copy during the lending period, and preventing them from using the downloaded copy after the lending period has expired.
     
    In its judgment, the ECJ found that the lending of digital copies is not generally excluded from the scope of the "Directive on rental right and lending right and on certain rights related to copyright in the field of intellectual property" (Directive 2006/115/EC). The Directive provides that the author shall have the exclusive right to authorize or prohibit rentals and loans of their books. However, member states may derogate from that exclusive right in respect of public lending, provided that authors obtain fair remuneration. The Court further found that the lending of e-books under the "one-copy, one user" model is essentially similar to the lending of printed books, and that it therefore is within the scope of the Directive and its public lending exception. The Court stressed, however, that the public lending exception does not apply to a public library making available a digital copy of a book that was obtained from an unlawful source.