Copyright and eLending in public libraries: an incomplete revolution?

Abstract

The central purpose of public libraries can be articulated as the need to meet the informational and knowledge needs of societies, which has both an economic and a cultural dimension. These fundamental policy concerns underpin the interventions at EU level, such as the Public Lending Right (Rental and Lending Rights Directive 92/100/EC, codified as 2006/115/EC), and the jurisprudence of the Court of Justice of the European Union (CJEU). However, the understanding has been muddied in subsequent rulings by the CJEU that address the new possibilities of digital libraries. While in VOB (C-174/15), the Court adopts a dynamic or evolving interpretation by extending the concept of Lending to eLending, Tom Kabinet (C-263/18) reduces the possibility of libraries to access digital copies of books by narrowing the scope for digital exhaustion. This article traces the policy context of the Public Lending Right in this light and assesses what lawful sources may be available for libraries to obtain access to digital copies of books for the purposes of eLending. The findings are bleak: Libraries following VOB are free to lend electronically to the public, however in practice they have been left without a digital collection. The article argues that it is in the public interest to maintain the equivalence of Lending and eLending and offers a range of possible interventions (under copyright, consumer and contract law) that may support the goals of libraries in the digital space.