Unlocking E-Lending in Europe: is unbiased safe digital lending authorized below nationwide legal guidelines? – Report Abstract (Half II) – Cyber Tech

In an age the place digital entry defines training, analysis, and participation, European libraries face critical authorized and technical limitations to lending digital books. Regardless of the digital shift, outdated or restrictive interpretations of copyright legislation usually forestall libraries from fulfilling their public mission on-line.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 challenge, addresses this problem by proposing a legally sound and sensible resolution: the unbiased Safe Digital Lending (iSDL) mannequin. Half I of the report examined whether or not iSDL is appropriate with worldwide and EU legislation, 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 unbiased Safe Digital Lending (iSDL) could also be allowed below EU legislation doesn’t imply it’s mechanically permitted below the nationwide legal guidelines of Member States. EU legislation permits 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.

For that reason, our research centered on a key query: To what extent do nationwide authorized programs throughout Europe presently permit—or might permit 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, primarily based 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 legislation.

The first situation involved whether or not nationwide legislation offers a authorized foundation for digitising library collections (e.g., an specific statutory provision authorising digitisation, a technology-neutral copy proper that 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) e-book lending is universally recognised, e-lending stays legally unclear or restricted in lots of jurisdictions. Nationwide authorized programs have been assessed primarily based on whether or not they expressly allow e-lending in laws or will be interpreted, in gentle of the VOB ruling, to incorporate digital codecs inside the lending proper. The closing 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 below EU legislation, our evaluation reveals no nation has totally put it into follow. 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 will 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 data and tradition. The evaluation divides international locations into teams primarily based on their copyright frameworks:

• Group 2 contains Germany, Croatia, Poland, and the UK, the place nationwide legal guidelines will be interpreted in ways in which allow e-lending per 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 will not be 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, it is very important notice that, except for Slovakia, native legal guidelines in most international locations can doubtless be interpreted in a approach that allows the implementation of e-lending below the iSDL mannequin. It’s because in Slovakia, e-book lending shouldn’t be primarily based on the derogation below Article 6 of the Rental and Lending Directive however slightly on agreements with collective administration organizations — making any lending mannequin primarily based on an exception successfully inconceivable.

Human rights as a basis for Interpretation of copyright

Probably the most essential dimensions of the report is its emphasis on the necessity to interpret copyright legislation via the lens of customers’ elementary rights. The best to tradition, freedom of expression, the proper to training, and the proper to privateness — all recognised below 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 legislation—one which takes under consideration customers’ elementary rights. The CJEU, within the Enjoyableke Medien case, clearly emphasised {that a} nationwide courtroom should depend on an interpretation which, “while per their wording and safeguarding their effectiveness, totally adheres to the basic rights enshrined within the Constitution of Basic Rights of the European Union.” (para. 76)

The report highlights the important thing position 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 acquire data, develop abilities, and join with tradition—essential elements of the proper to training and free data entry. Utilizing human rights to interpret copyright legislation 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 position in defending elementary rights when deciphering nationwide copyright legal guidelines, following CJEU rulings, is not only elective however legally vital. To adjust to EU legislation, 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 below the iSDL mannequin is privateness. Increasingly, libraries present e-book entry via platforms owned by publishers or business corporations. Whereas this enables quick and huge entry to digital content material, it raises critical privateness issues and should battle with public libraries’ core values. Utilizing e-books on this approach includes amassing and sharing consumer knowledge. Issues happen when license agreements pressure libraries to share this knowledge—normally with rights holders. Even when this complies with knowledge safety legal guidelines, it includes not simply private knowledge below 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 beneficial because the content material itself. Apps and web sites for e-books accumulate data like studying time, highlights, search phrases, and consumer habits. This clashes with librarianship’s moral ideas, which concentrate on defending consumer privateness and permitting entry with out surveillance. This “surveillance publishing” mannequin tracks consumer conduct and threatens a core worth: mental freedom—the proper to learn, analysis, and discover data anonymously.

Customers ought to be capable to use library sources with out being tracked and determine 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 clear up 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 below library management, and helps mental freedom.

Coverage suggestions: In direction of a sustainable e-lending

Based mostly on the research’s findings, we now 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 below the iSDL mannequin or different approaches per the VOB ruling. This exception have to be technology-neutral and never override contracts or TPMs. It must also allow libraries to digitize and use e-books even when present agreements or applied sciences limit this. Authors ought to obtain honest remuneration via the Public Lending Proper scheme. Ideally, this exception could be a part of a broader framework centered on entry to data, reminiscent of 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 programs. 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 repeatedly, finest achieved via clear authorized frameworks.

Lastly, attaining e-lending requires the lively involvement of libraries themselves. Each time attainable, they ought to implement e-lending inside the framework of current nationwide legal guidelines. Native library associations should develop frequent tips addressing the authorized and technical facets of e-lending. Whereas many nationwide legal guidelines will be interpreted in methods appropriate with iSDL, adopting codes of follow would supply higher readability and authorized certainty. Moreover, libraries have to actively have interaction with policymakers, demonstrating how present market circumstances undermine their mission and the rights of customers.