The document discusses digital lending by public libraries from both EU and US legal perspectives. It summarizes the views of copyright holders, who oppose exceptions for digital lending, and librarians, who support exceptions. Currently digital lending is conducted through contracts between parties rather than exceptions. The document also analyzes whether digital lending could be considered fair use. It notes debates around how digital lending may differ from traditional physical lending in legal terms and models used.

1. DIGITAL LENDING AND PUBLIC
ACCESS TO DIGITAL CONTENT.
AN EU-US PERSPECTIVE
Giorgio Spedicato
Adjunct Professor of Intellectual Property Law
School of Law – University of Bologna
33rd ATRIP Congress
Montpellier, 7 July 2014

2. UNESCO Public Library Manifesto (1994)
The public library, the local gateway to knowledge, provides a
basic condition for lifelong learning, independent decision-
making and cultural development of the individual and social
groups.
This Manifesto proclaims UNESCO’s belief in the public library as
a living force for education, culture and information, and as an
essential agent for the fostering of peace and spiritual welfare
through the minds of men and women.
UNESCO therefore encourages national and local governments to
support and actively engage in the development of public
libraries.

3. The role of public libraries
in the Internet era: an example
Annual Report 2013
NYPL serves more than 18 million
patrons who come through its doors
annually
NYPL added nearly 900,000 books
and nonprint items to its circulating
collections
NYPL has quadrupled its budgets for
circulating ebooks, and now acquires
approx. 45,000 copies of ebooks a
yeara free provider of
education and
information for the
people of New
York and beyond.

4. Old-fashioned lending
lend: to give something to
someone for a short period of time,
expecting it to be given back.

5. Digital Lending
Main technological models
Digital lending: a work in digital format is made remotely available to a patron, for a
limited period of time, through a technological infrastructure.
Mimetic model: the library authorizes a patron to download a digital copy of
the work. The whole process is controlled by a DRM system so that at the end
of the lending period the file is automatically erased from the device of the
patron who has borrowed it.
Quasi-mimetic model: the library authorizes a patron to remotely access the
work (but not to download it). Access is typically obtained by using dedicated
credentials which expire at the end of the lending period.
Frictions:
One copy – one user systems (mimic the rivalry in consumption of physical
objects)
Lending caps (mimic the deterioration of physical objects)

6. Contract-based digital lending
Digital lending of an eBook clearly involves a number of acts which are subjected
to the copyright holders’ exclusive rights.
A wide consensus has emerged both in the EU and the US on the fact that no
exception or limitation under their respective legal systems may be applied to
digital lending.
Currently, public libraries are offering digital lending services to their patrons based
not on copyright limitations or exceptions, but on agreements among the parties
concerned (publishers, distributors or aggregators, and libraries.)

7. Contract-based digital lending
The copyright holders’ perspective
This model has proven to be satisfactory for copyright holders, who object to the
introduction of a specific exception in copyright law.
In their responses to the Public Consultation on the review of the EU copyright rules
launched at the end of 2013 by the EU Commission, publishers basically pointed out
that:
digital lending interferes with the sales of eBooks much more than traditional
lending interfered with the sales of physical books;
any exception in this area would conflict with the normal exploitation of the work
in the digital markets and would unreasonably prejudice the legitimate interest of
the rightholder, thus failing the three-step test provided by Article 10 WCT;

8. Contract-based digital lending
The librarians’ perspective
This model has proven to be less satisfactory for librarians, who strongly support the
introduction of a specific exception in copyright law.
In their responses to the Public Consultation on the review of the EU copyright rules
launched at the end of 2013 by the EU Commission, librarians basically pointed out
that:
contract-based solutions for digital lending has led to higher prices than those
applied on the retail market for eBooks or on the market for physical books
in some cases, there has been a refusal to supply eBooks to libraries, with the
consequence that the digital collection building policy is, in fact, decided by
publishers and not by libraries.

9. Contract-based digital lending
Lessons from (recent) history

10. Contract-based digital lending
Lessons from (recent) history

11. Contract-based digital lending
Lessons from (recent) history

12. Treaty Proposal on Copyright Limitations and
Exceptions for Libraries and Archives
In the last 5 years, the WIPO Standing Committee on Copyright and Related Rights has
actively discussed the opportunity to adopt a binding international instrument on
copyright limitations and exceptions to enable libraries to preserve their collections,
support education and research, and lend materials
Article 7 (v. 4.4 – 6 December 2013)
Right to Library and Archive Lending and Temporary Access
[…]
(2) It shall be permitted for a library or archive to provide temporary access to
copyright works in digital or other intangible media, to which it has lawful access, to
a user, or to another library, for consumptive use.
[…]

13. Treaty Proposal on Copyright Limitations and
Exceptions for Libraries and Archives
«In many Member States, licensing also plays an important role, either
alongside the application of exceptions or instead of the application of
exceptions.»
«the current international copyright framework already provides for
sufficient legal space for Member States of WIPO to ensure meaningful
limitations and exceptions (in the analogue and digital context) while
respecting the necessary balance to ensure that copyright continues to be
an incentive and a reward to creativity. Hence, we believe that there is no
need for further rule making at international level in this regard.»

14. Would a digital public lending exception
be compliant with the three-step test?
Article 10 WCT
Limitations and Exceptions
(1) Contracting Parties may, in their national legislation, provide for limitations of or
exceptions to the rights granted to authors of literary and artistic works under this
Treaty in certain special cases that do not conflict with a normal exploitation of the
work and do not unreasonably prejudice the legitimate interests of the author.
Agreed statement concerning Article 10: It is understood that the
provisions of Article 10 permit Contracting Parties to carry forward
and appropriately extend into the digital environment limitations
and exceptions in their national laws which have been considered
acceptable under the Berne Convention. Similarly, these provisions
should be understood to permit Contracting Parties to devise new
exceptions and limitations that are appropriate in the digital
network environment.
FRICTIONS
One copy – one user
Lending cap

15. European legal framework
At least two viable interpretative options:
Article 2(1)(b)
Directive 2006/115/EC
[…] “lending” means making
available for use, for a limited
period of time and not for
direct or indirect economic
or commercial advantage,
when it is made through
establishments which are
accessible to the public;
Article 3(1)
Directive 2001/29/EC
[…] making available to the
public in such a way that
members of the public may
access them from a place and
at a time individually chosen by
them.
VS.
Green Paper on Copyright and Related
Rights in the Information Society (1995)
Green Paper on Copyright and Related
Rights in the Information Society (2002)
Recital 40 Directive 2001/29/EC

16. European legal framework
At least two viable interpretative options:
Article 2(1)(b)
Directive 2006/115/EC
[…] “lending” means making
available for use, for a limited
period of time and not for
direct or indirect economic
or commercial advantage,
when it is made through
establishments which are
accessible to the public;
Article 6(1)
Directive 2001/29/EC
Member States may derogate
from the exclusive right
provided for in Article 1 in
respect of public lending,
provided that at least authors
obtain a remuneration for such
lending.

17. European legal framework
At least two viable interpretative options:
Article 3(1)
Directive 2001/29/EC
[…] making available to the
public in such a way that
members of the public may
access them from a place and at
a time individually chosen by
them.
Article 5(3)(n)
Directive 2001/29/EC
[…] use by communication or
making available, for the purpose of
research or private study, to
individual members of the public by
dedicated terminals on the
premises of establishments referred
to in paragraph 2(c) of works and
other subject-matter not subject to
purchase or licensing terms which
are contained in their collections;
Technische Universität Darmstadt
Case C-117/13
[cf. par. 48 AG‘s opinion]
!

18. European legal framework
Possibile solutions to the problem of reproduction
Libraries
Article 5(1) EUCD [temporary acts of reproduction which are transient or incidental
and an integral and essential part of a technological process] interpreted in the light
of the Public Relations Consultants Association case (C-360/13)
Article 5(2)(c) EUCD [specific acts of reproduction made by publicly accessible
libraries]
Patrons
Article 5(2)(c) EUCD [copy for private use]
Article 5(1) EUCD [temporary acts of reproduction which are which are transient or
incidental and an integral and essential part of a technological process] interpreted in
the light of the Public Relations Consultants Association case (C-360/13)

19. US legal framework
The ability of public libraries to provide access to their resources is traditionally
grounded in the first sale doctrine.
17 U.S. Code § 109 (a)
Notwithstanding the provisions of
section 106 (3), the owner of a
particular copy or phonorecord lawfully
made under this title, or any person
authorized by such owner, is entitled,
without the authority of the copyright
owner, to sell or otherwise dispose of
the possession of that copy or
phonorecord. […]
The applicability of the first
sale doctrine to digital copies
is strongly questioned and
has been explicitly rejected
by the US District Court for
the Southern District of New
York in the recent Capitol
Records, LLC v. ReDigi Inc.
case.
!

20. US legal framework
The ability of public libraries to provide access to their resources is traditionally
grounded in the first sale doctrine.
17 U.S. Code § 109 (a)
Notwithstanding the provisions of
section 106 (3), the owner of a
particular copy or phonorecord lawfully
made under this title, or any person
authorized by such owner, is entitled,
without the authority of the copyright
owner, to sell or otherwise dispose of
the possession of that copy or
phonorecord. […]
Normally, eBooks are not
sold, but licensed to
libraries
Even if the library could
be deemed to be the
owner of the purchased
copy, it could only lend
that “particular” copy

21. US legal framework
The applicability of the first sale doctrine to digital lending matters only to the
extent that we refer to mimetic models.
The problem with quasi-mimetic models is to determine whether or not a library
providing access to a copy of a work to a patron, for a limited time, without the
copyright holders’ authorization, is an infringement of copyright (more precisely,
of the public display or public performance right).

22. US legal framework
Quasi-mimetic models
17 U.S. Code § 101
To perform or display a work “publicly”
means—
(1) to perform or display it at a place open to
the public or at any place where a substantial
number of persons outside of a normal circle
of a family and its social acquaintances is
gathered; or
(2) to transmit or otherwise communicate a
performance or display of the work to a place
specified by clause (1) or to the public, by
means of any device or process, whether the
members of the public capable of receiving the
performance or display receive it in the same
place or in separate places and at the same
time or at different times.
Does a ‘one-user-at-a-time-
for-each-digital-copy’ quasi-
mimetic digital lending model
amount to an infringement of
the exclusive right of public
display (or performance)?
Cablevision vs. Aereo holdings
How to assess the problem of
copies?

23. US legal framework
Quasi-mimetic models
17 U.S. Code § 107
[…] the fair use of a copyrighted work […] is not
an infringement of copyright. In determining
whether the use made of a work in any
particular case is a fair use the factors to be
considered shall include:
(1) the purpose and character of the use,
including whether such use is of a commercial
nature or is for nonprofit educational
purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the
portion used in relation to the copyrighted
work as a whole; and
(4) the effect of the use upon the potential
market for or value of the copyrighted work.
Does a ‘one-user-at-a-time-
for-each-digital-copy’ quasi-
mimetic digital lending model
amount to an infringement of
the exclusive right of public
display (or performance)?
Cablevision vs. Aereo holdings
How to assess the problem of
copies?

24. Leaks from Brussels …
White Paper – A Copyright Policy for Creativity and Innovation in the European
Union (Internal Draft)
[…] updating the consultation exception could be considered, to
allow specific categories of establishments to provide remote
consultation to researchers and enrolled students under certain
conditions (including access via secure netoworks, conditions of use
or embargo periods) while preserving license-based models. Further
assessment of these conditions and of the possibility of making
these exceptions mandatory and giving them cross-border effect in
the EU is required.
A legislative initiative on electronic lending seems on the contrary
premature given the level of development of the e-book market and
the piloting and roll-out of licensing solutions

25. Some (not really) final remarks
An answer to Prof. Pistorius’ question: «Is there a law applied off-line which is
different from the one applied online»: in the case of public lending, definitely yes.
Effective solutions could more likely come from the courts’ interpretation of the
existing norms, provided that judges are willing to go beyond a textualist and
formalistic interpretation of such norms
Quasi-mimetic models of digital lending – incorporating (at least in part) those
“frictions” that characterize the public lending of physical books – have more
chances of being deemed non-infringing than mimetic models
Whatever legislative change is made to allow digital lending by public libraries
should not be drafted having in mind a specific technological model, but should
set general principles (along the lines of the IFLA Principles for Library eLending):
technological models change faster than legislation

26. THANK YOU FOR YOUR ATTENTION
Giorgio Spedicato
Adjunct Professor of Intellectual Property Law
School of Law – University of Bologna
http://www.slideshare.net/giorgiospedicato