Our writing has focused largely on the implications of the digital marketplace on individual consumers, but libraries face many of the same problems—and more. We've seen high-profile litigation between copyright interests and libraries over digitization, the HathiTrust case being the most recent example. But so far, we haven't seen libraries in the U.S. challenging restrictions on digital lending in court.
But the Vereniging Openbare Bibliotheken (VOB), a Dutch library association has brought suit to vindicate its “one copy, one user” policy for ebooks, which treats digital books much like their tangible counterparts. Advocate General Maciej Szpunar of the Court of Justice of the European Union recently issued an opinion endorsing the libraries' approach.
Crucially, the opinion begins with a recognition of the cultural importance of libraries:
Libraries are one of civilisation’s most ancient institutions, predating by several centuries the invention of paper and the emergence of books as we know them today. In the 15th century, they successfully adapted to, and benefited from, the invention of printing and it was to the libraries that the law of copyright, which emerged in the 18th century, had to adjust. Today we are witnessing a new, digital revolution, and one may wonder whether libraries will be able to survive this new shift in circumstances. Without wishing to overstate its importance, the present case undeniably offers the Court a real opportunity to help libraries not only to survive, but also to flourish.
He went on to find:
The lending of electronic books is the modern equivalent of the lending of printed books. I do not concur with the argument put forward in this case that there is a fundamental difference between electronic books and traditional books, or between the lending of electronic books and the lending of printed books....
[W]hat is in my opinion decisive is the objective element: in borrowing a book, either traditional or electronic, from a library a user wishes to acquaint himself with the content of that book, without keeping a copy of it at home. From that point of view there is no substantial difference between a printed book and an electronic book or between the methods by which they are lent.
While libraries can license ebooks from publishers, rather than relying on ownership, the Advocate General's opinion understood that there's a big difference between seeking permission and acting on the basis of a legal right to lend. Equally importantly, he recognized that market forces are not always sufficient to secure the benefits libraries have historically provided to the public:
Since time immemorial, libraries have lent books without having to seek authorisation. Some of them, legal deposit libraries, have not even had to purchase their own copies. That may be explained by the fact that books are not regarded as an ordinary commodity and that literary creation is not a simple economic activity. The importance of books for the preservation of, and access to culture and scientific knowledge has always taken precedence over considerations of a purely economic nature.
Today, in the digital age, libraries must be able to continue to fulfil the task of cultural preservation and dissemination that they performed when books existed only in paper format. That, however, is not necessarily possible in an environment that is governed solely by the laws of the market. First, libraries, and public libraries especially, do not always have the financial means to procure electronic books, with lending rights, at the high prices demanded by publishers. That applies especially to libraries operating in disadvantaged areas, where their role is most important.