Controlled digital lending: a legal alternative in the EU and Spain

FESABID published a legal opinion confirming the legal feasibility of controlled digital lending of digitised documents under certain conditions.

Controlled Digital Lending (CDL) has been the subject of considerable analysis in recent years. It is the practice of lending, under certain conditions, a digitised copy of a literary, artistic or scientific work from an institution’s collections. This service supports libraries in fulfilling their mission to support research, education and cultural participation within the current legal intellectual property (IP) framework of exceptions and limitations.

FESABID published a report by Raquel Xalabarder, Professor of Intellectual Property at the Universitat Oberta de Catalunya (UOC), on “Libraries and limitations in the digital context. Controlled digital lending in Spain” to help understand the legal conditions that enable CDL.

The key legal context for CDL is the 2016 confirmation by the Court of Justice of the European Union (CJEU) that, under European IP law, an e-book is equivalent to an analogue book and can, therefore, be lent under the same conditions: no more than one copy per user simultaneously and for a limited time.

In 2021, the International Federation of Library Associations and Institutions (IFLA) published a legal and economic analysis with an international perspective defending the legal viability of the CDL, translated into Spanish by FESABID. The position defends that CDL is already lawful in several countries.

In the report, Prof. Xalabarder analyses the two CJEU cases most relevant to CDL. The first one, mentioned above (Vereniging Openbare Bibliotheken v. Stichting Leenrecht, C-174/15, 2016), confirms that an e-book retains its status as a book and can, therefore, be lent under the public lending limit, provided that this is done “under comparable conditions” to the lending of printed books: one copy to one user at a time. The second case (Technische Universität Darmstadt v. Eugen Ulmer, C-117/13, 2014) confirms the possibility of relying on more than one limitation to perform an activity: for example, making a copy for preservation purposes and making it available to the public through specialised terminals. Prof. Xalabarder further reviews the scope of the limitations for preservation and lending in Spain.

Based on this jurisprudence and on the limitations to copyright to support libraries, archives and museums, which are well implemented in Spanish legislation, the report establishes that there is a legal basis for carrying out CDL in Spain. In the words of Prof. Xalabarder: 

“the CJEU is not encouraging libraries to stop obtaining licenses in the market, but simply protecting them so that beyond the market, they can continue to fulfil their public interest purpose, and allow them in specific cases to go beyond the licensed scope. This is precisely the value of legal limitations”. 

As long as only one copy of an eBook is lent, the loan is protected under a limitation to intellectual property. In other words, it does not require authorisation from the rights holder, although it is subject to remuneration. Digital lending of more than one copy per user requires authorisation, which is often formalised through a license between the library and the publisher. The license allows access to the eBook in exchange for the payment of a fee by the library under terms set by the publisher.

Licensing markets can work organically to provide access to works in the digital environment, with CDL covering market failures where they exist. FESABID’s report is clear: “the validation of CDL and the combination of limits carried out by the CJEU is not intended to replace the licensing models released by rightholders in the market (which will always remain the natural and most efficient means of exploitation of works and other subject matter), but precisely to make up for the market deficiencies when they exist (bear in mind that not all publications are licensed for use in digital format) and to ensure that libraries will be able to continue to fulfil their public interest purpose, in specific cases, even when such licences do exist in the market.” 

Despite the legal viability of CDL in Spain, Prof. Xalabarder recommends reforming the Spanish IP law to clearly include at the national level various concepts of European law to enable greater legal certainty in the practices of libraries, museums and archives.

This report is a response to a recommendation by IFLA for an analysis of the legal conditions at the national level to confirm the legality of CDL. To this end, FESABID published this analysis of the Spanish legal framework within which libraries, archives and museums perform their essential function of preserving and disseminating heritage and providing access to culture while respecting intellectual property rights.

Prof. Xalabarder is a recognised international expert on the regime of limitations to intellectual property that enable the activities of libraries, archives and museums. She is currently the president of the Spanish group Asociación Literaria y Artística para la Defensa del Derecho del Autor (ALADDA) – the Spanish chapter of the International Literary and Artistic Association (ALAI). She is the former chair of the European Copyright Society (ECS) and has recently been appointed director of the Patent Academy of the European Patent Office.

Knowledge Rights 21

The original report in Spanish “Bibliotecas y límites en el context digital. El préstamo digital controlado en España“, published by FESABID, is supported by Knowledge Rights 21 (KR21).

FESABID

The Federación Española de Sociedades de Archivística, Biblioteconomía, Documentación y Museística (FESABID) is a private non-profit organisation, founded in 1988, which brings together most of the associations and professional associations of the information and documentation sector in Spain.

FESABID brings together 23 professional associations and colleges in Spain, both territorially and in other specialised areas, to exchange knowledge, experiences and experiences and carry out projects of common interest. FESABID is recognised as the common spokesperson for the professional collective of information and documentation professionals by public administrations, the European Union and various international organisations.


21 February 2024