1709 Blog: for all the copyright community

Monday, 27 April 2015

"Lending" online: more questions for the Court of Justice

On 1 April 2015, the District Court of The Hague passed judgement in the case between Vereniging van Openbare Bibliotheken (Netherlands Public Library Association, VOB) and Stichting Leenrecht (the Public Lending Right Office, SL). The District Court referred questions to the Court of Justice of the EU on online lending of e-books by public libraries. The questions are listed on the website of Dirk Visser's law firm Visser Schaap & Kreijger here. For convenience we reproduce them here:
1. Should Articles 1(1), 2(1)(b) and 6(1) of Directive 2006/115 be interpreted in such a way that "lending", as referred to in the directive, includes making copyright novels, anthologies of stories, biographies, travelogues, children's books and youth literature available for use without direct or indirect economic or commercial advantage by establishments accessible to the public
- by placing a copy in digital form (reproduction A) on the establishment's server and making it possible for a user to reproduce it on his own computer by downloading (reproduction B),
- such that the copy made by the user during the download (reproduction B) is no longer usable after a limited period of time, and
- such that other users are not able to download the copy (reproduction A) onto their computer during this time?
2. If the first question must be answered in the affirmative, does Article 6 of Directive 2006/115 and/or any other provision of European Union law preclude Member States from attaching the condition, to the application of the restriction on the lending right laid down in Article 6 of Directive 2006/115, that the copy of the work (reproduction A) made available by the establishment has been put into circulation by the first sale or other transfer of ownership of that copy in the European Union by the rightholder or with his consent within the meaning of Article 4(2) of Directive 2001/29?

3. If the second question must be answered in the negative, does Article 6 of Directive 2006/115 impose other requirements on the origin of the copy made available by the establishment (reproduction A), such as, for example, the requirement that that copy has been obtained from a legal source? 
4. If the second question must be answered in the affirmative, must Article 4(2) of Directive 2001/29 be interpreted in such a way that the first sale or other transfer of ownership of subject-matter, as referred to in that paragraph, also means the making available of digital copies of copyrighted novels, anthologies of stories, biographies, travelogues, children's books and youth literature at a distance by means of downloading for use for an unlimited period of time?
A full text translation of the decision can be accessed by clicking here.  Thanks, Dirk -- and many apologies for not posting this earlier.  This blogger is still playing catch-up with his Easter emails ...

On this topic, see also Eleonora's Katpost of 15 September last, here.

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