Kelly Breemen and Vicky Breemen, Institute for Information Law, Amsterdam (IViR).
“However, in none of the studied countries, e-lending activities rely on a statutory copyright or lending right exception.”
"Secondly, the legal part of the report analyses whether the existing public lending right system of the Dutch Copyright Act (Auteurswet) covers e-lending by public libraries. This system converts the exclusive lending right of the rightholder into a remuneration right. The study examines both the legislative history and the wording of the relevant provisions. This makes clear that, although the subject matter of the lending right has been gradually expanded to other materials than books (such as CD-ROMs), still only information carriers in physical form (‘exemplars’) are covered by the public lending right.
(...) Interestingly, the proposal for the Rental and Lending Right Directive explicitly excluded making available by way of downloading from its scope, despite recognizing electronic lending as a future possibility. In addition, the European Commission described the object of the lending right as objects that incorporate protected works or performances, which points in the direction of physical reproductions. (...) In sum, the current derogation from the exclusive lending right does not seem to accommodate e-lending. Therefore, since e-lending can be classified under the general making available right, the report also looks at the specific library exceptions of the EU Copyright Directive (‘Infosoc’), which provides for a closed catalog of exceptions. Yet, only making available on site via terminals in the library seems to be covered by Article 5(3)(n), which leaves no space for the introduction at the national level of a copyright exception for online e-lending (that is, borrowing over the Internet from the home).
In conclusion, neither current Dutch copyright law nor the EU legal framework seems to leave room for e-lending without rightholder permission. Of course, this does not mean that libraries cannot lend e-books, merely that this practice is not covered by a copyright exception at the moment and therefore requires agreements with authors and other right holders.
(...) The report finally recommends that the Dutch government refrain from legislative action at this early stage, and that e-lending be facilitated through contractual agreements between the parties involved, as is already the case abroad. An important role is seen for collective rights management with regard to these contractual solutions. Furthermore, the statutory instrument of extended collective licensing (ECL) is put forward as a suggestion if the mandate of collective rights organizations would prove to be structurally deficient to lead to reliable contractual solutions permitting e-lending by public libraries."
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B912156
