E-books the same as printed ones, says top Euro court egghead

In a seemingly commonsense but important decision, the top advisor of the European Court of Justice (ECJ) has decided that electronic books (e‑books) are legally equivalent to their printed versions when it comes to lending them through libraries.

In an opinion released [PDF] Thursday, Advocate General Maciej Szpunar said e‑books should be covered by the Rental and Lending Rights Directive, which means libraries don't need an author's permission to provide them to the public.

Under that EU law, libraries are given a special "public lending" exemption from copyright law, where an author is granted exclusive rights to authorize – and prohibit – rentals or loans of their work. That exemption holds so long as authors are fairly remunerated.

That may seem like an obvious position, but the case has made it all the way up to the ECJ because of a dispute between the Dutch government and the association of Dutch public libraries (called the Vereniging Openbare Bibliotheken (VOB)).

The VOB currently operates a "one copy, one user" policy where an e‑book is checked out and then becomes unavailable to others. When it is checked back in, the book is made available again and the borrower's copy stops working. This is called "digital exhaustion" in the lingo.

In effect, such a system mimics a physical book even though it is possible to create millions of copies of e‑books for virtually no cost. And Szpunar has given his legal approval of this approach.

Clarity

The Dutch government, acting through its collection agency Stichting Leenrecht, sought clarity in the law after it took the position that the e‑lending approach taken by the VOB was effectively creating a new copy of the book. And it was concerned that the original lender would not delete their version of the book.

Importantly, Szpunar steers clear of the issue of digital exhaustion because, he argues, it is entirely separate from the question of whether e‑books fall under the lending rights directive.

But he does give some pointers by saying that he doesn't see why digital copies should be treated any differently to physical copies. He also references an earlier landmark decision by the ECJ over what constitutes a "copy" when it comes to digital technology.

That decision was in Oracle vs UsedSoft. UsedSoft set up a second-hand marketplace for software and sold users' digital licensing code. Critically, it said that the previous owner of the software had agreed to discontinue their use of that code, and so it was available for resale, and it provided a certificate to that effect.

Oracle was not persuaded and sued, with the critical point being that UsedSoft could not prove the digital exhaustion had happened. And the courts found in Oracle's favor (UsedSoft later dropped its appeal).

Note: This is a greatly simplified summary of the UsedSoft case focused only on the issue of what "copy" means. For more information see our story from 2012.

What does this all mean?

The decision is all very legalistic at the moment and hovering at the principle level rather than the nuts-and-bolts realities of e‑lending.

Szpunar's opinion – which is available in 18 languages but not English yet – takes an historical (and often poetic) look at the role of libraries and the disbursal of human knowledge. He notes that commercial imperatives have always been put to the side when it comes to the importance of sharing information over the ages.

His opinion is not legally binding on the European Court of Justice and a release from his office specifically notes that the court's judges are only "beginning their deliberations in this case."

That said, what it looks like is that e‑books will be treated exactly the same as physical books even though they could, very easily, be viewed differently.

In reality, it means that libraries will likely adopt a "one copy, one user" model and purchase a certain number of copies of any given e‑book in the same way they do currently with physical books.

The battleground will then be over the actual system and technology used to lend e‑books. And at the center of that issue are two questions:

1. Does someone need to physically appear at a library in order to take out an e‑book? (One would hope not.)
2. How does a library ensure to authors' and publishers' satisfaction that old copies of e‑books do not remain readable?

Szpunar wisely stayed away from that topic, but it will, in all likelihood, be subject to another legal case in the coming years. ®