An important EU Court case advances the doctrine of first sale for e-books in the Europe Union: https://teleread.org/2016/11/14/bill-rosenblatt-inconclusive-ruling-on-library-e-book-lending-in-europe/
Program Manager and Copyright Advisor for Harvard University, Kyle K. Courtney, responded to this recent decision: “Although strictly an EU decision, this could generate some thoughts for our struggles with e-books here in the U.S. Remember, the case comes from the Netherlands, where public libraries are required to pay royalties for the books they lend out as part of a “public lending” right. These fees are distributed to writers, artists, and publishers via collecting societies. However, this public lending right in the Netherlands did not apply to e-books. Therefore, libraries could only lend out e-books for which they have purchased a license from the publisher.
That’s where we are in the U.S.: We “rent” our e-books. We don’t own them. And when we don’t own them, we lose a lot of use-based options. These e-books are governed by restrictive licensing (truly, it looks a lot like a lease or limited license) that can prevent some of our core practices such as basic loans, interlibrary loan, preservation copies, or even printing for distribution.
This EU decision is hopeful because it suggests that a “dynamic” or “evolving” interpretation of the EU copyright directive should be applied, and that lending of e-books is certainly the modern equivalent of the lending of printed books. That is a big statement! We need something like that here in the U.S. – a fresh reading of the copyright act, especially the first sale doctrine, which is the law that allows libraries to loan print books, as long as they have purchased the work legally.
But our courts, our copyright office, and others have rejected this notion of a “digital first sale” right. This rejection makes it clear that first sale rights mainly apply to physical, not digital, disposal of copies.
If we can’t have legislation, and we are stuck with licensing, then maybe we can do what the EU court advocated for in its opinion via license: If libraries are purchasing e-books, they need to advocate for clauses in the contract that best serve their mission, their community, and their collection policies. A contract isn’t formalized until it is signed – take the time to try and negotiate. Introduce interlibrary loan clauses, preservation clauses, reject terms that harm collection development goals, or the mission of the libraries.
Perhaps we can learn from this decision on how to advocate for our own U.S.-based e-book purchasing and lending.”
Stay tuned for Kyle’s full analysis in the next issue of CRIV Sheet.