The Digital Realm - Lending of e-Books is Allowed under the Rental and Lending Right Directive, Says AG Spuznar

The days of the library seem to have been over for some years now, with e-book sales reaching £2,1 billion in 2015, and most young people are blissfully unaware of that wonderful place where books are free and (nearly) endless. While modern media consumption has clearly been a catalyst in this paradigm shift, e-lending was touted as the next big thing, especially since many consume their literary share exclusively in electronic form. With this change in consumption, the question of whether libraries can indeed lend out electronic copies of books was dealt with by the Advocate General prior to a ruling by the CJEU.

The case of Vereniging Openbare Bibliotheken v Stichting Leenrecht involved two stakeholders in relation to the above question. VOB are an association representing of all of the public libraries in the Netherlands, who argued that electronic lending should apply equally to physical lending under Netherlands' (and EU) law, specifically through the Rental and Lending Right Directive. The other side, Stichting Leenrecht, are a collection society for authors in relation to the public lending derogation under Article 6 of the Directive, and argue that e-lending does in fact fall under the scope of the lending right. According to VOB, this lending would be done similarly to physical copies, i.e. one copy for one user, making it inaccessible to others during this period, therefore being covered by the derogation; a position that Stichting Leenrecht contest.

The first question, summarized by the Advocate General, asked whether Article 1 of the Directive "...is to be interpreted as meaning that the making available to the public, for a limited period of time, of electronic books by public libraries falls within the scope of the lending right enshrined in [the Article]".

Will was thrilled about the opinion for the sake of his arms

Advocate General Spuznar discussed the evolution of the technology after the setting of the legislation (having its origins in legislation from 1992), and saw that "...at that time, the EU legislature did not contemplate the inclusion of the lending of electronic books within the concept of lending of Directive 92/100, if for no other reason than because the technology for commercially viable electronic books was then only in its infancy". Clearly, the Advocate General's position here is one of pragmatism, and this writer concurs with his thoughts here, since technological evolution, even when not contemplated by the legislature at the time, should be included when possible. His continued, in a similar vein to this writer's thoughts, that the courts should "...take[] into account developments in technology, markets and behaviour and not to fix such acts in the past by adopting too rigid an interpretation... An interpretation of this kind, which might be described as ‘dynamic’ or ‘evolving’... [and is important] particularly in fields where technological progress has a profound effect, such as copyright". His opinion concludes that the borrowing of library books in electronic form illustrates the phenomenon perfectly, and a looser, inclusionary interpretation would lead to a better enforcement of the law in the new technological world. This adaptation is also in the interests of the authors and the public at large in being able to access culture and scientific knowledge more readily.

In short: "...Article 1 includes the making available to the public of electronic books by libraries for a limited period of time".

The Advocate General then discussed the wording and structure of the Directive, quickly dismissing any claim as to it being contrary to the Directive in allowing for electronic books from benefitting from the derogation. Similarly, he addressed possible issues with the copyright system in Europe and international obligations, concluding that there are no issues with neither provisions in the light of the above. 

In answering questions 2 to 4, he determined that should a Member State wish to introduce provisions enshrining the derogation in Article 6 in national law, they, however, are free to preclude the derogation from applying prior to initial circulation by the author and/or without proper consent from the same as to the lending of a given work. This cannot unduly restrict the derogation, but can be applied within reason.

The opinion in the case, as stated above, is one of pragmatism and reason, allowing for the development of technologies and new ways of distributing lawful copies to those who otherwise might not be able to access them. New technologies are being created all the time, and the law's rigidity would only deter the proper application of those technologies, often to the detriment of the general public. We remain to see whether the CJEU follow the Advocate General's opinion, and this writer for one, hopes they do.

Source: IPKat

Liberation Music Takes on Lawrence Lessig

The haven of the Internet for all that is video, YouTube, often presents an interesting situation for both copyright holders and content distributors. While there are guidelines and measures in place on YouTube's part to prevent infringing material from being uploaded to the website, often this type of content slips through the cracks. In order to address issues such as this, content owners can submit a copyright infringement notification, effectively having the video removed from the service. There have been instances where content has been frivolously claimed to infringing copyright, causing legitimate videos to be removed from the site when there really is no basis for such a claim. In a recent turn of events such a claim was submitted over a video of a lecture by Lawrence Lessig, arguably one of the greatest legal minds in modern copyright; and Mr. Lessig chose to take action.

The Electric Freedom Foundation has taken action on behalf of Mr. Lessig in a recent complaint to the District Court of Massachusetts which involves the takedown of a lecture video by Mr. Lessig entitled "Open". In their complaint the EFF argue that Liberation Music, an Australian record company, have frivolously claimed that Mr. Lessig's lecture, which contained a short piece of the song Lisztomania by Phoenix, infringed their copyright due to the use of the song which is owned by the record company. The EFF claim that the use of the song fell under fair use, and therefore would not be an infringement of copyright.

In addition to seeking the use of the song to being declared fair, Mr. Lessig is also seeking damages under 17 USC § 512, which limits the liability of parties in relation to materials online. While the provision protects certain uses of materials it also provides relief in the instance of misrepresentation, which means that should a copyright holder submit a claim for infringement, knowing that it does not, they can be held liable for damages.

Lawrence Lessig was just as baffled as you were over the claims

In expressing his reason to take action Mr. Lessig stated that: "The rise of extremist enforcement tactics makes it increasingly difficult for creators to use the freedoms copyright law gives them... I have the opportunity, with the help of EFF, to challenge this particular attack. I am hopeful the precedent this case will set will help others avoid such a need to fight." Given the trigger-happy nature of some DMCA takedown claims, Mr. Lessig's position can be argued to being completely valid, but raises the concerning notion that it needed to happen to one of the premier figures of copyright for there to be action taken against these misuses. Should  Mr. Lessig prevail in his claim, companies surely should be more careful when submitting their claims in the future, and providing an avenue for any frivolous claims should the companies not take adequate steps to insure their claims are valid.

Clearly this matter will be taken to court, as Mr. Lessig's intentions are not to seeking merely monetary compensation, but to set a precedent. The future of the case shall be discussed once it has been heard in the District Court sometime later this year.

Source: Ars Technica