E-lending (e-book lending) by public libraries in Poland not too soon, actually quite slow. The system should be operational at least from 2016.

March 14, 2022

On 8.03.2022, attorney Janusz Piotr Kolczynski made several comments to Dziennik Gazeta Prawna concerning the minister’s response dated 25 February 2022 to a recent parliamentary question. The author wondered why the minister is so slow in implementing an effective library e-lending system in Poland? Why do we as a state fail to provide a high level of protection for authors?

The following is a comment by attorney Kolczyński on the minister's response of 25 February this year to the parliamentary interpellation:

Creating dependencies and delays

From at least 10 November 2016, the Polish legislator has been in delay in implementing a good library exception beneficial for authors. In 2016 the CJEU issued a judgement in case no. C-174/15 Vereniging Openbare Bibliotheken v. Stichting Leenrecht, which legalised the Dutch practice of e-book lending by public libraries. 

In Poland, the widespread use of e-books is unfortunately blocked by conservative copyright law. Authors are thus deprived of a substantial part of their remuneration and e-book users of general access to books. Although some public libraries already make e-books available, this is not done under the library exception. It is therefore not universal, requires the consent of the right holders, etc. As a result mainly directories of private companies are made available, e-books for which the copyright has expired and so on. This monopolises the market, fragments it, creates dependencies between the public and private sectors, etc.

Legal obligation

Meanwhile, the legislator has been obliged to take measures to support public libraries and to promote special "specific contracts or licences (…), without creating imbalances” within the meaning of recital 40 of Directive 2001/29 on copyright in the information society. Unfortunately, we are not doing anything in this respect as a state, i.e. we are not providing authors with a high level of protection.

Strategic thinking?

The Minister's response confirms the status quo and the lack of strategic thinking. It is also not justified by copyright law, in particular the 1992 Directive on Rental and Lending (2006 codified version). It introduced a library exception. The Minister does not distinguish between rental and lending (CJEU C-174/15: 35, 39, 44). Indeed, rental may be associated (although this can be argued) with the circulation of a tangible copy of a work, but lending not necessarily so. Therefore, there is no justification for Article 28 of the Polish Copyright Law to use only the concept of a material copy (an exemplar), traditionally understood as a material carrier.
 

Internal competences of EU Member States

For years the Polish legislator has not used the possibilities offered by European law. The new directive on Copyright in the Digital Single Market (DSM) encourages EU Member States to introduce their own legal solutions in this field. It does not affect, inter alia, the existing and future regulations in the Member States concerning public lending rights (Article 16). The point is not, as the Minister considers in his response, that the directive does not modify the lending right exception, but that it confirms that the EU does not prevent Member States from establishing their own systems for regulating current and future public lending. Poland could therefore, have been free to develop this system for a long time, provided, of course, that the minimum requirements of the directive on rental and lending are complied with.
 

The concept of a copy and library licenses?

As mentioned above, the legislator was also obliged to promote special "specific contracts or licences (…), without creating imbalances”. Thus, we could, for example, remove the concept of a material copy (an exemplar) from Article 28 of the Copyright Law, correlate this with library royalties, so that they could be collected by collective management organisations (CMO) also for e-books. The law could also regulate an optional library licence combined with the payment of royalties by the collective management organisations.

Author: Janusz Piotr Kolczyński