Spedicato_Digital lending and public access to digital content. An EU - US perspective

DIGITAL LENDING AND PUBLIC

ACCESS TO DIGITAL CONTENT.

AN EU-US PERSPECTIVE

Giorgio SpedicatoAdjunct Professor of Intellectual Property Law

School of Law – University of Bologna

33rd ATRIP Congress

Montpellier, 7 July 2014

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.

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.

Old-fashioned lending

lend: to give something to

someone for a short period of time,

expecting it to be given back.

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)

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.)


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;


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.


Lessons from (recent) history





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.

[…]

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.»

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

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)


[…] 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



Article 2(1)(b)


[…] “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)


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.



Article 3(1)


[…] 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)


[…] 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]!


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)

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.

!

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

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).

US legal framework

Quasi-mimetic models

17 U.S. Code § 101To 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?

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?

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

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

THANK YOU FOR YOUR ATTENTION

Giorgio SpedicatoAdjunct Professor of Intellectual Property Law

School of Law – University of Bologna

http://www.slideshare.net/giorgiospedicato