I took a little bit of heat from certain members of the library community who were bothered by my analysis last week of the European Court of Justice’s (ECJ’s) decision in the case of Vereniging Openbare Bibliotheken (Dutch Public Library Association) v. Stichting Leenrecht (Lending Rights Foundation, the Dutch collecting society for royalties from library lending) about library e-book lending rights.  Yet a look at the way e-books are actually made available to library patrons in the Netherlands suggests that the ECJ ruling is even less conclusive than I had thought.

The ECJ decision established a right for libraries to lend digital materials to their patrons on a “one copy, one user” model provided that the library legitimately “bought” or “was transferred ownership of” the digital materials.  And in another case last year (Nederlands Uitgeversverbond (Dutch Publisher’s Association) v Tom Kabinet (an e-book resale website), a Dutch appeals court found that resale rights applied to e-books … under the same conditions about purchase or ownership.

Some folks in the library community took this as a sign that libraries were finally getting rights to lend e-books without having to explicitly take licenses from publishers — for which publishers can charge whatever they want and attach whatever conditions they want, or refuse to do at all.  I said that’s not true: not only because courts haven’t established that libraries actually “buy” (or otherwise “take ownership of”) copies e-books in the first place, but also because that’s not how library e-book lending works in the real world anyway.

In most cases, public libraries use e-lending platforms which obtain (single) copies of titles from publishers, process them, and store them in a central repository.  When a library wants to “lend” an e-book to a user, it makes a copy of the file from the repository, possibly processes it further (depending on how the platform’s DRM scheme works, among other things), and sends it to the user.

The “one copy, one user” model is modeled by a count of “copies” that each library pays for: if it pays for N copies of a title, then up to N users at a time can access that title at one time.  This at least metaphorically satisfies that aspect of the ECJ’s ruling.  But it’s still a matter of debate whether libraries get access to the titles in the first place by “purchase,” “transfer of ownership,” or otherwise.

Some of these library platforms are operated by third parties, while other library groups operate them in-house.  OverDrive (owned by the Japanese company Rakuten) is the largest worldwide; it operates a single logical repository with (at this writing) more than 2.6 million digital titles, from which each library can choose what it wants to pay for and make available for lending.  OverDrive doesn’t provide exact figures, but the number of libraries that use its platform is in the tens of thousands worldwide.  EnkiLibrary, the in-house e-lending platform for the Califa system in California, serves several dozen of the system’s 220 libraries.

But it turns out that the “one copy, one user” model doesn’t apply to Netherlands public libraries in the first place.  Dutch public libraries  use a central system operated by de Koninklijke Bibliotheek (Royal Libary) in the Hague.  De Bibliotheek runs an e-lending platform that serves hundreds of public libraries in the Netherlands using a system based on Adobe Content Server, which is similar to both the OverDrive and EnkiLibrary systems… except for one thing.  De Bibliotheek uses a “one copy, multiple users” model in which users pay nominal fees to “borrow” e-books — making the arrangement more like rental than loan — and with no limit to the number of users who can access a given title concurrently.

That turns out to be the heart of the dispute between Vereniging Openbare Bibliotheken and Stichting Leenrecht.  Dutch libraries have license agreements with publishers that call for them to pay a fee for for each time-bounded e-book access.  As I mentioned last time, Dutch law requires libraries to pay royalties to publishers whenever a (print) book is loaned out.  It’s likely that the statutory lending royalty is lower than the fees that Dutch libraries pay to publishers for e-book “loans,” meaning that the libraries would want to be able to lend e-books  (at the lower rate) without having to get a license from publishers to do so.  (This is analogous to the situation in the United States, where some of the major trade book publishers charge libraries license fees for e-books that are higher than consumer retail prices.)

All this renders the ECJ’s decision all the more inconclusive, as the matter is referred back to the District Court in the Netherlands (and possibly back up the chain in appeals).  Even if a court decides that libraries actually do “buy” or “transfer ownership of” e-books from publishers under the central repository paradigm — and if a court were to agree that what Dutch libraries do is lending rather than rental — de Bibliotheek would have to change its platform so that it’s actually implementing “one copy, one user.”  The good news for de Bibliotheek is that the underlying software makes it relatively easy to make that change.

(I invite actual Dutch people to tell me in the comments whether I got this right or not.)