ECJ ruling on e-books “Libraries are allowed to lend e-books”

Prof. Dr. Gabriele Beger
Prof. Dr. Gabriele Beger | Photo (detail): © Private

Up to now, e-books could not be lent by libraries as are printed books because they do not fall under the lending right. This could change after the ruling of the European Court of Justice, says the librarian and jurist Gabriele Beger.

Ms Beger, last year the European Court of Justice went into the matter of lending e-books. What has been the situation up to now with the lending of e-books by libraries?

For the public libraries of cities and communities there are still great difficulties because they can’t buy an e-book as they can a printed book and then lend it. They must always obtain a license from the publishers. And since many publishers fear that libraries will lend an e-book to everybody and so take away potential customers from the publishers, they sometimes refuse to grant a license for distribution. For academic libraries this isn’t a big problem. Publishers offer them e-book license packages that are identical with those that they used to get for textbooks and scientific reference works in printed form. These packages are sometimes irritating because, as part of them, you always have to buy media you wouldn’t normally buy. But as a rule the packages for universities are very useful. Here the price increases are causing great problems.

The ECJ ruling from November 2016 was eagerly awaited by both libraries and the publishing world. Can libraries now lend e-books just like printed books?

The ECJ has so far examined only whether the EU directive on rental and lending rights allows e-books to be lent out at all. This was triggered by a lawsuit from the Netherlands. The court ruled that it isn’t contrary to EU law if a national legislature permits the lending of e-books. This doesn’t automatically mean that the ECJ urges German lawmakers to allow the same. Currently, German copyright law is regulated so that the distribution of a work may not be prohibited if it has been placed on the market with the consent of the copyright holder. But up to now, this has applied only to printed books, not to e-books.

What future restrictions are there according to the ECJ ruling on the lending of e-books?

The decision clearly defines the conditions. The library must be the legal owner of the e-book. That is, it may not simply lend the media from another library and then re-lend it. Libraries may lend an e-book to only one user at a time. If they make an e-book available to multiple users at the same time, they need multiple licenses. In addition, it must be technically ensured that the title is deleted on the computer of the library user after expiry of the loan period and that the author receives an appropriate remuneration.

The German Publishers and Booksellers Association, the lobby for publishing houses, has sharply criticized this ruling on the grounds that it will lead to publishers and authors no longer being remunerated in conformity with the market.

Of course it’s more attractive for publishers to receive revenue from license fees every year, as before, instead of only a one-time purchase price. But then you have to calculate differently and you can’t sell an e-book for a price lower than a printed book. Many publishers now allow you to lend e-books. And the survival of these publishers is in no way threatened economically.

The German Publishers and Booksellers Association also fears that the supply of e-books would decline with the implementation of the ECJ ruling.

It certainly won’t decline. Decisive is always what the users want. At present, the market for e-books is rather exhausted. But before, the number of e-books increased for many years.

What does this mean for license negotiations with publishers?

One possibility would be that e-books that are equivalent to printed books and have no added value are placed under the right of distribution. For this, the libraries would then pay royalties for lending, as they do with printed books. There’s also another option, namely to introduce so-called compulsory licenses. That is, publishers would then be obligated to grant libraries licenses on reasonable terms. They could no longer then refuse to sell libraries a particular e-book.

When is the implementation of the ECJ ruling to be expected?

I think that after the Bundestag election in September 2017, we’ll once again go to the legislature and ask for the implementation.

What does the ruling mean for the future lending of e-books by libraries?

The e-book has enjoyed a permanent place in the expansion of holdings of academic libraries for many years. There is also a great interest in e-books such as novels in public libraries. If publishers continue to not allow libraries to lend, for example, a classic of German literature, this is a serious interference with freedom of information. Media competency is a key skill and this also means that people can borrow an e-book.
 

Prof. Dr. Gabriele Beger is a librarian and jurist. Since 2005 she has been head of the Hamburg State and University Library. Until the winter semester of 2016 she taught media law at the Humboldt University in Berlin and the University of Hamburg. She represents on a voluntary basis the area of the library system in, among others organizations, the German Cultural Council, the Commission on Public Lending Rights of the Conference of Education Ministers and the expert committee for culture of the German Commission for UNESCO.