In an age the place digital entry defines training, analysis, and participation, European libraries face critical authorized and technical boundaries to lending digital books. Regardless of the digital shift, outdated or restrictive interpretations of copyright regulation typically forestall libraries from fulfilling their public mission on-line. A brand new report led by the Future Legislation Lab at Jagiellonian College and the Centrum Cyfrowe Basis, developed as a part of the KR21 undertaking, addresses this problem by proposing a legally sound and sensible answer: the impartial Safe Digital Lending (iSDL) mannequin. Half I of the report examined whether or not iSDL is suitable with worldwide and EU regulation, whereas Half II now explores whether or not nationwide legal guidelines in chosen European international locations allow libraries to implement this mannequin.
Can European libraries lend digitised books? Comparative authorized evaluation
The truth that impartial Safe Digital Lending (iSDL) could also be allowed underneath EU regulation doesn’t imply it’s mechanically permitted underneath the nationwide legal guidelines of Member States. EU regulation allows this mannequin however doesn’t require international locations to undertake it. Whereas the Rental and Lending Directive, along with the VOB and Darmstadt rulings by the CJEU, open a authorized pathway for digital lending by libraries, they don’t obligate nationwide legislatures to implement it.
Because of this, our research targeted on a key query: To what extent do nationwide authorized techniques throughout Europe presently enable—or may enable via dynamic interpretation—the implementation of iSDL by libraries? To reply this, we analysed the laws of twenty-two international locations, together with 20 EU Member States, based mostly on three important authorized circumstances. These standards replicate what is required for iSDL to function lawfully inside nationwide frameworks, contemplating EU directives and CJEU case regulation.
The first situation involved whether or not nationwide regulation gives a authorized foundation for digitising library collections (e.g., an specific statutory provision authorising digitisation, a technology-neutral copy proper which will cowl digital copying, or an ancillary proper). The second situation examined whether or not libraries are legally entitled to lend digital variations of works. Whereas conventional (bodily) ebook lending is universally recognised, e-lending stays legally unclear or restricted in lots of jurisdictions. Nationwide authorized techniques have been assessed based mostly on whether or not they expressly allow e-lending in laws or might be interpreted, in gentle of the VOB ruling, to incorporate digital codecs inside the lending proper. The remaining situation involved the existence of a Public Lending Proper scheme that applies to e-books.
Findings: Fragmented nationwide legal guidelines and the feasibility of iSDL
Though the iSDL mannequin is legally allowed underneath EU regulation, our evaluation exhibits no nation has totally put it into apply. In not one of the 22 studied international locations do nationwide legal guidelines meet all three circumstances without delay (Group 1). Nonetheless, just like R. Xalabarder’s analysis on Spain, the research discovered that in lots of international locations, copyright legal guidelines might be interpreted extra flexibly to permit e-lending. This goes past the precise wording of the legal guidelines and focuses on the aim of copyright exceptions—to advertise public entry to information and tradition. The evaluation divides international locations into teams based mostly on their copyright frameworks:
- Group 2 consists of Germany, Croatia, Poland, and the UK, the place nationwide legal guidelines might be interpreted in ways in which allow e-lending in keeping with the VOB and Technische Universität Darmstadt
- Group 3, consisting of the Czech Republic, Estonia, Spain, Finland, France, Hungary, Eire, Italy, Latvia, Lithuania, the Netherlands, and Slovenia, faces extra interpretative challenges however these aren’t insurmountable.
- Lastly, Group 4—Bulgaria, Greece, Portugal, Romania, Slovakia, and Ukraine—encounters extra authorized obstacles that presently forestall implementing iSDL e-lending.
In fact, interpretative approaches and doctrinal frameworks in particular person international locations imply that the classification we suggest shouldn’t be thought of definitive. Nonetheless, you will need to be aware that, except for Slovakia, native legal guidelines in most international locations can possible be interpreted in a manner that allows the implementation of e-lending underneath the iSDL mannequin. It’s because in Slovakia, ebook lending is just not based mostly on the derogation underneath Article 6 of the Rental and Lending Directive however reasonably on agreements with collective administration organizations — making any lending mannequin based mostly on an exception successfully inconceivable.
Human rights as a basis for Interpretation of copyright
One of the necessary dimensions of the report is its emphasis on the necessity to interpret copyright regulation via the lens of customers’ elementary rights. The fitting to tradition, freedom of expression, the precise to training, and the precise to privateness — all recognised underneath European and worldwide human rights frameworks — should information the evolution of copyright exceptions and limitations. In our view, implementing the iSDL mannequin in European libraries requires a dynamic interpretation of copyright regulation—one which takes into consideration customers’ elementary rights. The CJEU, within the Enjoyableke Medien case, clearly emphasised {that a} nationwide court docket should depend on an interpretation which, “while in keeping with their wording and safeguarding their effectiveness, totally adheres to the basic rights enshrined within the Constitution of Elementary Rights of the European Union.” (para. 76)
The report highlights the important thing function of libraries and e-lending in supporting elementary human rights like training, freedom of expression, cultural participation, and privateness. In right this moment’s digital world, entry to digital books is essential for equal alternatives and combating digital exclusion. Libraries assist individuals achieve information, develop expertise, and join with tradition—necessary components of the precise to training and free info entry. Utilizing human rights to interpret copyright regulation creates a good steadiness between defending rights holders and assembly social wants, permitting libraries to hold out their mission on-line. Contemplating e-lending’s function in defending elementary rights when decoding nationwide copyright legal guidelines, following CJEU rulings, isn’t just non-obligatory however legally obligatory. To adjust to EU regulation, it could be wanted to transcend the literal wording of legal guidelines and rethink previous ideas which have ignored this human rights dimension.
Digital publishing and consumer privateness: A battle of fashions
A key issue supporting the legality of e-lending underneath the iSDL mannequin is privateness. Increasingly, libraries present e-book entry via platforms owned by publishers or business corporations. Whereas this enables quick and extensive entry to digital content material, it raises critical privateness considerations and will battle with public libraries’ core values. Utilizing e-books on this manner includes gathering and sharing consumer knowledge. Issues happen when license agreements drive libraries to share this knowledge—normally with rights holders. Even when this complies with knowledge safety legal guidelines, it includes not simply private knowledge underneath GDPR but additionally different knowledge about how e-books are used.
Many publishers, together with educational ones, are shifting to data-driven enterprise fashions the place consumer knowledge is as worthwhile because the content material itself. Apps and web sites for e-books gather info like studying time, highlights, search phrases, and consumer habits. This clashes with librarianship’s moral ideas, which give attention to defending consumer privateness and permitting entry with out surveillance. This “surveillance publishing” mannequin tracks consumer conduct and threatens a core worth: mental freedom—the precise to learn, analysis, and discover info anonymously.
Customers ought to be capable of use library sources with out being tracked and resolve if their knowledge stays inside the library or is shared. Libraries shouldn’t be compelled to behave as middlemen in business knowledge assortment. The iSDL mannequin can remedy this by making certain all interactions and knowledge keep solely between the library and its customers, with out involving third events. This protects privateness, retains entry underneath library management, and helps mental freedom.
Coverage suggestions: In the direction of a sustainable e-lending
Based mostly on the research’s findings, now we have developed suggestions throughout three key ranges. To make sure uniform e-lending entry throughout Europe, the EU legislators ought to introduce a compulsory copyright exception permitting libraries to supply e-lending underneath the iSDL mannequin or different approaches in keeping with the VOB ruling. This exception have to be technology-neutral and never override contracts or TPMs. It also needs to allow libraries to digitize and use e-books even when present agreements or applied sciences limit this. Authors ought to obtain truthful remuneration via the Public Lending Proper scheme. Ideally, this exception could be a part of a broader framework targeted on entry to information, comparable to a Digital Data Act or European Analysis Space Act.
No matter EU laws, nationwide lawmakers ought to, inside EU limits, introduce provisions permitting iSDL of their authorized techniques. Such laws are important to guard customers’ elementary rights, presently weakened by authorized uncertainty and unique reliance on business licenses. Libraries want authorized certainty to have interaction in e-lending usually, finest achieved via clear authorized frameworks.
Lastly, reaching e-lending requires the lively involvement of libraries themselves. At any time when potential, they ought to implement e-lending inside the framework of current nationwide legal guidelines. Native library associations should develop frequent pointers addressing the authorized and technical points of e-lending. Whereas many nationwide legal guidelines might be interpreted in methods suitable with iSDL, adopting codes of apply would offer higher readability and authorized certainty. Moreover, libraries have to actively interact with policymakers, demonstrating how present market circumstances undermine their mission and the rights of customers.
