Report: e-Books and Secure Digital Lending in European Libraries: Comperative Analysis Under National and International Law

A groundbreaking comparative analysis of copyright law and applicable European Union regulations concerning secure digital lending.

What is the state of digitization and digital lending under EU law? We have checked in which EU Member States digital lending is already legal and does not require additional legislative changes, where its legalization can take place at the level of national provisions, and in which cases changes at the EU level will be necessary.

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Libraries seeking to implement e-Lending services first require a digital copy of a book to lend. While libraries could acquire the legal rights to lend born-digital copies through statute, case law, or specific licenses, ownership of born-digital copies by libraries is not yet widespread. Often, rightsholders do not offer license agreements that grant libraries ownership or apply licensing provisions and technological protection measures (TPMs) that restrict libraries from freely lending e-Books.

An alternative option involves libraries digitising a paper book for the purpose of e-Lending. This model, where a library creates a digital copy from a paper book, offers potential for facilitating e-Lending, especially when rightsholders are unwilling to provide libraries with acceptable license terms for e-Books. In the USA, the digitisation of paper books for e-Lending is known as Controlled Digital Lending (CDL). In Europe, this practice, based on libraries digitising paper books, is referred to as (independent) Secure Digital Lending, or (i)SDL. The term “(i)” in (i)SDL indicates that this type of e-Lending relies on books digitised or created by the library itself, distinct from license agreements for e-Books.

Both CDL and (i)SDL are conceptually underpinned by the restriction that a library can e-Lend no more electronic copies than it possesses paper copies, adhering to a “one copy – one user” model. This approach is considered permissible under interpretations of case law, such as the 2016 landmark ruling by the Court of Justice of the European Union (CJEU) in the Vereniging Openbare Bibliotheken (VOB) case, which includes digital books within the concept of lending. Furthermore, the possibility of digitising paper books for this purpose can be based on analogous interpretations grounded in other CJEU rulings, such as the CJEU’s TU Darmstadt ruling. Consequently, (i)SDL is proposed as a legal framework in Europe that enables libraries to legally digitise physical books and lend the resulting electronic copies to patrons.

Explanation of (independent) Secure Digital Lending – (i)SDL

• Loans are made by strictly defined entities – establishments which are accessible to the public (e.g. libraries) and which derive no direct or indirect economic or commercial advantage from their lending activity (requirement for a special case);
• Lending covers the lending of a digital copy of a book;
• Loans are made under the one copy-one user model;
• Lending is carried out in a mimetic (i.e. allowing patrons to download electronic copies of books) or a quasi-mimetic fashion (i.e. allowing the use of electronic copies of books in streaming);
• Lending is only for a limited period;
• After the lending period has expired, the user cannot use the e-Book;
• A digital copy of a book must be obtained from a lawful source, but the library can
• make an electronic copy of a legally obtained copy of a paper book;
• e-Lending under the (i)SDL model gives rise to the right to remuneration (PLR) in line with the Rental and Lending Directive;
• There is no transfer of data, including personal data of library patrons, to publishers or other third parties.

KEY TAKEAWAYS

Context & Legal Background

• The discussion about e-Lending by libraries in Europe is essential for regulating their activities in the digital world.
• The 2016 Vereniging Openbare Bibliotheken (VOB) ruling by the Court of Justice of the European Union confirmed that “lending” under EU law includes digital lending of e-books by public libraries.

The (i)SDL Model Explained

• The report looks at the (i)SDL (independent Secure Digital Lending) model, where libraries lend a digital copy of a book they legally own. This model follows the “one copy – one user” rule and does not generate direct profits for libraries. It relies on libraries’ rights to digitise books, but laws on digitisation vary between countries.
• The report argues that libraries should be able to offer e-Lending under the (i)SDL model without needing permission from rights holders, as this supports access to knowledge and human rights.

Current Legislative Gaps & Privacy Concerns

• Most countries currently lack clear laws allowing e-Lending by libraries, especially under the (i)SDL model. Where e-Lending exists, it is mostly based on licenses.
• License-based e-Lending may raise concerns about user privacy, as it can involve sharing personal data with publishers. The (i)SDL model avoids these issues by protecting user privacy.
• The report suggests that existing laws are unclear or insufficient. The lack of action may be due to assumptions about the VOB ruling or pressure from political or publishing interests.

Recommendations for Legal Reform

• Legal changes are needed to allow libraries to fully operate in the digital environment, including enabling e-Lending as per the VOB ruling. These changes should be neutral to technology, mandatory, and protect both libraries’ right to digitise and users’ privacy.
• The ultimate goal should be to create laws that allow large-scale digitisation of resources and broader online access, while ensuring that any solutions, including licensing, protect user rights.

Author: Konrad Gliściński, LL.M., PhD, Centrum Cyfrowe, Jagiellonian University – Faculty of Law and Administration (Future Law Lab)

Contributors:

• dr hab. Ewa Laskowska-Litak, LL.M., Jagiellonian University – Faculty of Law and Administration (Future Law Lab)
• Katarzyna Strycharz, Centrum Cyfrowe
• Maria Drabczyk, Centrum Cyfrowe

Reviewers:

• Professor UAM dr hab. Katarzyna Klafkowska-Waśniowska, Adam Mickiewicz University in Poznań, Associate Professor
• Caterina Sganga, Sant’Anna School of Advanced Studies in Pisa
• Benjamin White, CIPPM, Bournemouth University, Knowledge Rights 21
• Stephen Wyber, International Federation of Library Associations and Institutions (IFLA), Knowledge Rights 21

The study was conducted by Centrum Cyfrowe in partnership with the Future Law Lab flagship project within the Priority Research Area Society of the Future under the Strategic Programme Excellence Initiative at Jagiellonian University.

The publication is issued as part of the Knowledge Rights 21 project, funded by Arcadia – a family charitable foundation.

About Knowledge Rights 21 and Centrum Cyfrowe

The Knowledge Rights 21 Programme (KR21) aims to mobilise a strong and sustainable national network of copyright advocates, supporting a delivery of a legal and policy reform necessary to achieve a 21st century worthy access to research, education and culture.

Centrum Cyfrowe is privileged to be the programme’s National Coordinator in Poland. Our aim is to advocate for change, build bridges and create space for dialogue and understanding necessary to catalyse change in relation to the needs of libraries, research, education and culture on national and regional level. Meet other National Coordinators.