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CJEU: The lending of an e-book

In such a situation, the public lending exception, which provides inter alia for the fair remuneration of authors, is applicable.

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.

Vereniging Openbare Bibliotheken, an association to which every public library in the Netherlands belongs (‘VOB’), takes the view that the regime for traditional books should also apply to digital lending. In that context, it brought an action against Stichting Leenrecht, a foundation entrusted with collecting the remuneration due to authors, by which it sought a declaratory judgment to that effect. VOB’s action concerns lending under the ‘one copy, one user’ model, namely the lending of an electronic book carried out by placing that copy on the server of a public library and allowing the user concerned to reproduce that copy by downloading it onto his own computer, bearing in mind that only one copy may be downloaded during the lending period and that, after that period has expired, the downloaded copy can no longer be used by that user.

The Rechtbank Den Haag (District Court, The Hague, Netherlands), before which the dispute has been brought, considers that its response to VOB’s request depends on the interpretation of provisions of EU law and it has referred a number of questions to the Court of Justice for a preliminary ruling. A 2006 EU directive concerning, among other things, the rental and lending rights in respect of books1 provides that the exclusive right to authorise or prohibit such rentals and loans belongs to the author of the work. Member States may, however, derogate from that exclusive right in respect of public lending, provided that authors obtain, at least, fair remuneration. The question that arises is therefore whether that exception also applies to the lending of electronic books under the ‘one copy, one user’ model.

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