E-Lending Without Licensing Agreement? Onleihe ohne Lizenzvertrag?

Donnerstag, November 10th, 2016

Another interesting decision by the European Court of Justice regarding the e-lending of digital content through libraries:

„The lending of an electronic book (e-book) may, under certain conditions, be treated in the same way as the lending of a traditional book.

In the Netherlands, the lending of electronic books by public libraries does not come under the public lending regime applicable to traditional books. At present, public libraries make electronic books available to the public via the internet, on the basis of licensing agreements with right holders. […]

In today’s judgment, the Court of Justice first notes that there is no decisive ground allowing for the exclusion, in all cases, of the lending of digital copies and intangible objects from the scope of the directive [A 2006 EU directive concerning, among other things, the rental and lending rights in respect of books provides that the exclusive right to authorise or prohibit such rentals and loans belongs to the author of the work.]. That conclusion is, moreover, borne out by the objective pursued by the directive, namely that copyright must adapt to new economic developments. In addition, to exclude digital lending entirely from the scope of the directive would run counter to the general principle that a high level of protection is required for authors.

The Court then goes on to verify whether the public lending of a digital copy of a book under the ‘one copy, one user’ model is capable of coming within the scope of Article 6(1) of the directive. […]

In the present case, the Netherlands legislation requires that the digital copy of a book made available by the public library must have been put into circulation by a first sale or other transfer of ownership of that copy in the EU by the holder of the right of distribution to the public or with that holder’s consent. According to the Court, such an additional condition must be considered to be in accordance with the directive.“

I am not a lawyer, but I would read this decision as follows:
– A digital copy of an e-book must be legally obtained by the library,
– E-Lending under a one copy/one user model is legal without a separate licensing agreement,
– The renumeration of the use is paid directly to the author via collecting societies, and not paid to the publisher on basis of a license agreement!

Taking into account the devastation condition of the collecting society VG Wort in Germany (and the verdict to repay 100 Mio. EUR of publishers‘ earnings back to their authors), this is yet another very serious and challenging news for EU publishers.

Whether publishers will provide digital copies to libraries under this interpretation of the directive needs to be seen. The worst cast, provoked through this decision, could be that digital content will not be made available to readers by public libraries due to the lack of publishers, supporting digital e-lending under these conditions.

Sources:
https://drive.google.com/file/d/0B6d07lh0nNGNTTFOZ1N3dm1INzQ/view

http://www.nu.nl/internet/4348787/bibliotheken-mogen-e-books-net-als-papieren-boeken-uitlenen.html

Discussion on Facebook:

https://www.facebook.com/publishinghurts/posts/1804833159800173

[Update, 11 November 2015] Royal Dutch Library offering a ’subscription service‘, backed by a national budget

Montag, September 14th, 2015
Koninklijke Bibliotheek

Source: Koninklijke Bibliotheek, Uploaded by OlafJanssen, via commons.wikimedia.org

The National Library of the Netherlands (Koninklijke Bibliotheek, KB) is obviously aiming to set up a country-wide ’subscription service‘ for Dutch ebooks via www.bibliotheek.nl. The ebooks can be read on ebook readers, laptop’s/pc’s, tablets or smartphones.

According to the plans of the KB, national library users can subscribe to a ‘digital only’ national public library membership and will be provided access to – currently – about 10,000 ebooks from Dutch publishers, independently of their membership of the local city library — which caused some confusion among publishers and local libraries, who „owned“ the users so far. The service, announced by the KB, has been rescheduled, but is nonetheless about to start in 2016.

Currently, the KB seems to be negotiating a national license fee with the publishers for their service. A „substantial number“ of titles is supposed to be part of the base subscription. For new front list titles, a so-called „pluspakket“ (additional plan) shall be introduced, for which users will have to pay extra.

„The KB is in charge to come up with a suggestion for a license fee, which is being discussed with external stakeholders such as local libraries, publishers and the Dutch association of public libraries (VOB). The negotiated fee will then be proposed to the ministry (of Education, Culture and Sciences) for a final decision.“ (Quote KB, via Boekblad.nl, my (free) translation, S.P.)

Details on the possible deal are missing.

In my recognition, this is the first time, a national library is offering a paid ebook subscription service for national users, backed up by a national budget for a license agreement with the publishers (bibliotheek.nl already offers audiobooks (LuisterBieb) and selected commercial ebooks (VakantieBieb, Eboek Eregallerij) for some years to anyone downloading their free apps, without the need for a library membership.)

I doubt that this move by the KB would have been possible without a general political support and a hefty multi million budget (although, I am not an expert in the Dutch publishing market and cultural politics). But as seen from the outside, in the context of a) Amazon, about to launch their Kindle service in the Netherlands, and b) Scribd, not being able to come up with a sustainable business model for their service, this news sheds a new light on 1. the future of subscription services (like Mofibo and Bliyoo in the Netherlands), 2. the future of library aggregators (offering aggregation of content and lending service applications for public libraries), and 3. the future development of services, which are offered by the national libraries, directly.

Via www.boekblad.nl (via Google Cache).
Many thanks to Huub van de Pol, Twitter: @huwie!

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Update, 22 September 2015:

After the shutdown of Oyster, „the Netflix for books“, the questions I have raised above have become even more relevant. Oyster has been backed up with $17 million of venture capital, but this was obviously not enough money (time) to come up with a sustainable business model and convince publishers to participate and offer content through the service. The strategy to get such a significant number of users that would make publishers accept ‚reasonable‘ terms (i.e. reasonable for the service; which could as well have been a strategy for publishers, that might eventually have to deal with KU, alone), did not work out – for Oyster. 

The solution might be as proposed by the Dutch National Library: Back- and midlist availability, publicly funded, through services offered by public or national libraries; frontlist availability, patron driven and paid by users through ‚additional plans‘. 

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Update, 11 November 2015:

The Royal Dutch Library (KB) in Den Hague has announced a price tag for their library ebook subscription service: For 42 EUR (45 USD) per year you will be able to read (available) ebooks, which is supposed to be „close to the costs for commercial subscription services“. Via http://www.bibliotheekblad.nl/ (Google Translate)