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

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Paper presented at the ATRIP Congress 2014 (Montpellier)

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

  1. 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. 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. 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. 4. Old-fashioned lending lend: to give something to someone for a short period of time, expecting it to be given back.
  5. 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. 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. 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. 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. 9. Contract-based digital lending Lessons from (recent) history
  10. 10. Contract-based digital lending Lessons from (recent) history
  11. 11. Contract-based digital lending Lessons from (recent) history
  12. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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

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