A new report commissioned by Knowledge Rights 21 from Centrum Cyfrowe and the Future Law Lab at the Jagiellonian University takes a comprehensive look at eLending, and underlines how by relying on fundamental rights and a landmark 2016 ruling from the European Court of Justice libraries digitising paper books and lending them as eBooks can already be justified under existing copyright law.
As frequently highlighted by KR21, with the move from analogue to digital and as a consequence the now ubiquitous nature of licensing, the ability of a library to access eBooks and subsequently lend them out depends entirely on the willingness of publishers to let them.
As a result, owing to publisher licensing practice we are experiencing a radical reshaping of the role of the library, driven ultimately by a loss of control over collection-building policies. Not only this, unless there is legislative change, we face a situation where eBooks will potentially de facto never enter the public domain as they are perpetually protected by licensing terms and technical protection measures.
Away from the law, as highlighted by other organisations like Library Futures and the eBookSOS campaign, high prices, restrictive terms, bundling, and refusals to license are common.
This has serious implications for the ability of libraries to fulfil their missions to support research, learning, and cultural participation, now and for the long-term.
The report prepared by Centrum Cyfrowe and the Future Law Lab, commissioned by Knowledge Rights 21, explores one promising route towards allowing a library to continue to function in the digital environment. That is to say, the possibility to digitise physical books and lend them while simultaneously developing sustainable collections for future generations to inherit.
Such lending would mimic physical lending practices, with only as many copies (physical or digital) available to the public at any one time as the library holds, safeguarded by use of technological protections. This is referred to in the report as independent secure digital lending (iSDL).
The ground-breaking report from Jagiellonian University underlines the failure of national governments to align with the jurisprudence of the Court of Justice of the European Union (Vereniging Openbare Bibliotheken v Stichting Leenrecht in 2016), which has recognised that eLending should fall under the same rules as physical lending.
Even without an update to law at the European level, the report asserts that by interpreting national law in line with its original goals, as well as broader fundamental rights, there is scope already for libraries in many European countries to digitise and lend electronically under the existing Rental and Lending Directive.
The report also stresses that in addition to the work of government in making laws clearer and in the case of Brussels explicitly implementing the VOB judgement, there is an important role for groups of libraries and library associations themselves to set out what is already possible in line with a fundamental rights based interpretation of existing copyright law.
Look out for more analysis of the report in an upcoming blog, as well as a new report soon from the CREATe centre at the University of Glasgow, looking at the competition questions raised by the function of eBook markets. In the meantime, watch the recording of our webinar on the report.
Further reading:
- e-Books and Secure Digital Lending in European Libraries: Comparative Analysis Under National and International Law
- A Position Statement from KnowledgeRights 21 on eBooks and eLending
- Library eBook Pledge
22 May 2025
