How do libraries pay for e-books

ECJ ruling on e-books
"Libraries are allowed to lend e-books"

So far, libraries have not been able to lend e-books like printed books because they are not subject to lending right. But that could change after a ruling by the European Court of Justice, says librarian and lawyer Gabriele Beger.

Ms. Beger, the European Court of Justice dealt with the lending of e-books last year. How has the situation been so far when it comes to lending e-books in libraries?
 
City and community public libraries still face major difficulties because they cannot buy an e-book like a printed book and then borrow it. You always have to purchase a license from the publishers. And since many publishers fear that libraries will lend out an e-book in large numbers and that there will be no potential customers for the publisher, some of them do not grant a license to distribute it. This is not a big problem for academic libraries: publishers offer them e-book license packages that are identical to those that were previously available in printed form as textbooks and academic reference works. These packages are sometimes annoying because you always have to buy media that you would not normally buy. But as a rule, the packages for university libraries make perfect sense. The price increases are causing major problems here.
 
The ECJ ruling of November 2016 was eagerly awaited by both libraries and the publishing world. Can libraries now borrow e-books just like printed books?
 
The ECJ initially only examined whether the EU directive on rental and lending right even allows e-books to be loaned out. The trigger for this was a lawsuit from the Netherlands. The court has now ruled that it is not against EU law for a national legislature to allow e-books to be loaned out. However, this does not automatically mean that the ECJ also calls on the German legislature to allow it. In German copyright law, this is currently regulated in such a way that the further distribution of a work may not be prohibited if it has been brought into circulation with the consent of the author. So far, however, this right only applies to printed books, not to e-books.

What restrictions will there be in the future on the lending of e-books after the ECJ ruling?
 
Very clear requirements are defined in the judgment. So the library must be legally in possession of this e-book. She cannot simply borrow the media from another library and pass it on. Libraries may only lend an e-book to one user at a time. If you want to make a certain e-book available to several users at the same time, you need several licenses. In addition, it must be technically guaranteed that the title is deleted from the library user's computer after the loan period has expired and that the author receives appropriate remuneration.
 
The Börsenverein des Deutschen Buchhandels, representing the interests of the publishers, has sharply criticized that this judgment would lead to publishers and authors no longer being paid in line with the market.
 
Of course, it is better for the publishers to receive an income for a work every year through license fees, instead of just a one-off purchase price as before. But then you have to calculate differently and not sell an e-book cheaper than a printed book. Many publishers now allow e-books to be loaned out. And these publishers are in no way threatened economically.
 
In addition, the Börsenverein fears that the range of e-books would decrease as a result of the implementation of the ECJ ruling ...
 
This is guaranteed not to go back. It is always crucial what the users want. The market for e-books is currently somewhat exhausted, but before that sales had increased for many years.

What does this mean for the license negotiations with the publishers?
 
One possibility would be to place e-books that are equated with printed books and have no added value under the distribution right. For this, the libraries pay royalties for borrowing, as they do with printed books. There is also the second alternative, namely to introduce so-called compulsory licenses. That is, publishers are required to license libraries on reasonable terms. Publishers can then no longer refuse libraries to purchase a particular e-book.
 
When can the ECJ ruling be expected to be implemented in Germany?
 
I think that after the federal election in September 2017 we will approach the legislature again and ask for implementation.
 
What does the decision to lend e-books in libraries mean in the future?
 
In academic libraries, the e-book has had a permanent place in the expansion of its holdings for many years. There is also great interest in e-books in public libraries, for example novels. If publishers still cannot allow libraries to borrow a classic from German literature, for example, then that is a serious encroachment on freedom of information. Media literacy is a key skill and that includes being able to borrow an e-book.
 

Prof. Dr. Gabriele Beger is a librarian and lawyer. She has headed the Hamburg State and University Library since 2005. Until the winter semester of 2016, she taught media law at the Humboldt University in Berlin and the University of Hamburg. On a voluntary basis, she represents librarianship in the German Cultural Council, in the library royalty commission of the Conference of Ministers of Education and in the specialist committee for culture of the German UNESCO commission.