Case C‑174/15

Vereniging Openbare Bibliotheken

v

Stichting Leenrecht

(Request for a preliminary ruling from the Rechtbank Den Haag)

(Reference for a preliminary ruling — Copyright and related rights — Rental right and lending right in respect of copyright works — Directive 2006/115/EC — Article 1(1) — Lending of copies of works — Article 2(1) — Lending of objects — Lending of a digital copy of a book — Public libraries)

Summary — Judgment of the Court (Third Chamber), 10 November 2016

1.        Approximation of laws — Copyright and related rights — Directive 2006/115 — Rental right and lending right in respect of copyright works — Loan — Concept — Downloading a digital copy of a book from the server of a public library — Included

(European Parliament and Council Directive 2006/115, Recital 4 and Arts 1(1), 2(1)(b) and 6(1))

2.        Approximation of laws — Copyright and related rights — Directive 2006/115 — Rental right and lending right in respect of copyright works — Exclusive public lending right — Derogation — Making available by public libraries of digital copies of books — National legislation making the application of the derogation subject to the condition that the those copies must have been put into circulation in the European Union by the holder of the right of distribution to the public — Lawfulness

(European Parliament and Council Directives 2001/29, Art. 4(2) and 2006/115, Art. 6(1))

3.        Approximation of laws — Copyright and related rights — Directive 2006/115 — Rental right and lending right in respect of copyright works — Exclusive public lending right — Derogation — Making available by public libraries of digital copies of books — National legislation allowing the application of the derogation to copies obtained from illegal sources — Not permissible

(European Parliament and Council Directive 2006/115, Recital 2 and Art. 6(1))

1.      Article 1(1), Article 2(1)(b) and Article 6(1) of Directive 2006/115 on rental right and lending right and on certain rights related to copyright in the field of intellectual property must be interpreted as meaning that the concept of ‘lending’, within the meaning of those provisions, covers the lending of a digital copy of a book, where that lending is carried out by placing that copy on the server of a public library and allowing a user to reproduce that copy by downloading it onto his own computer, bearing in mind that only one copy may be downloaded during the lending period and that, after that period has expired, the downloaded copy can no longer be used by that user.

It is necessary to interpret the concept of ‘rental’, in Article 2(1)(a) of Directive 2006/115, as referring exclusively to tangible objects, and to interpret the concept of ‘copies’, in Article 1(1) of that directive, as referring, as regards rental, exclusively to copies fixed in a physical medium. Although intangible objects and non-fixed copies, such as digital copies, must be excluded from the rental right, governed by Directive 2006/115, so as not to be in breach of the agreed statement annexed to the World Intellectual Property Organisation Copyright Treaty, neither that treaty nor that agreed statement preclude the concept of ‘lending’, within the meaning of that directive, from being interpreted, where appropriate, as also including certain lending carried out digitally. In that respect, there is no decisive ground allowing for the exclusion, in all cases, of the lending of digital copies and intangible objects from the scope of Directive 2006/115.

That conclusion is, moreover, borne out by the objective pursued by Directive 2006/115. Recital 4 of that directive states, inter alia, that copyright must adapt to new economic developments such as new forms of exploitation. Lending carried out digitally indisputably forms part of those new forms of exploitation and, accordingly, makes necessary an adaptation of copyright to new economic developments. In addition, to exclude digital lending entirely from the scope of Directive 2006/115 would run counter to the general principle requiring a high level of protection for authors.

(see paras 35, 39, 44-46, 54, operative part 1)

2.      EU law, and in particular Article 6 of Directive 2006/115 on rental right and lending right and on certain rights related to copyright in the field of intellectual property, must be interpreted as not precluding a Member State from making the application of Article 6(1) of Directive 2006/115 subject to the condition that the digital copy of a book made available by the public library must have been put into circulation by a first sale or other transfer of ownership of that copy in the European Union by the holder of the right of distribution to the public or with his consent, for the purpose of Article 4(2) of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society.

Article 6(1) of Directive 2006/115, read in conjunction with recital 14 of that directive, which indicates that it is necessary to protect authors’ rights as regards public lending, and in view of the requirements flowing from the general principle imposing a high level of protection for authors, must be regarded as laying down only a minimum threshold of protection for authors required when the public lending exception is being implemented. It follows that the Member States cannot be prevented from setting, where appropriate, additional conditions such as to improve the protection of authors’ rights beyond what is expressly laid down in that provision.

(see paras 61, 65, operative part 2)

3.      Article 6(1) of Directive 2006/115 on rental right and lending right and on certain rights related to copyright in the field of intellectual property must be interpreted as meaning that it precludes the public lending exception laid down therein from applying to the making available by a public library of a digital copy of a book in the case where that copy was obtained from an illegal source.

Although the wording of Article 6(1) of Directive 2006/115 does not expressly set out any requirement that the source of the copy made available by the public library must be lawful, nevertheless one of the objectives of that directive is to combat piracy, as can be seen from recital 2 thereof. To accept that a copy lent out by a public library may be obtained from an unlawful source would amount to tolerating, or even encouraging, the circulation of counterfeit or pirated works and would therefore clearly run counter to that objective.

(see paras 67, 68, 72, operative part 3)