The Digital Media Project

Source

Philip Merrill

Title

TRU #49 Right of lending

No.

040420merrill07

 

Name:

Philip Merrill

Affiliation/additional information:

Active Contributor, Pasadena, California

Date submitted:

2004/04/20

 

#

Criteria

Description

1.

Name of TRU

Right of lending

2.

Summary description of TRU

the (restrictive) lending right is retained by the author as a form of TRU distribution requiring permission, applying obviously to libraries but also potentially to digital transfer rights; this TRU only applies to some nations

3.

Use records of TRU

This treatment relies on Paul Goldstein's books Copyright's Highway (GCH) and International Copyright (GIC) as well as Sam Ricketson's WIPO Study on Limitations and Exceptions of Copyright and Related Rights in the Digital Environment (R).

It appears TRU lending and TRU rental are both commonly used in order for creators to collect "equitable remuneration" under national compulsory licensing. However it also seems that these are not only used that way. Goldstein says, "Most countries that have adopted a public lending right have structured it as essentially a social welfare system...indeed, in these countries, to call the entitlement a "right" would be a misnomer" (GIC 3.2.3.I).

While libraries have often been at odds with Right-holders, they are also almost universally admired as treasuries or storehouses of knowledge and ideas. Private media use has been relatively non-governed, which applies to library patron End-users. Libraries inherently give rise to considerations of fair use, and extensive private uses - such as by borrowers - are part of the essential appeal of valuable intellectual property. This tension and its potential to abuse the interests of Right-holders is unlikely to be diminished by the use of digital forms of media, although the essence of what digital libraries can become is not yet known.

4.

Nature of TRU

TRU lending is treated by the 1992 E.C. Directive 92/100/EEC "on rental right and lending right and on certain rights related to copyright in the field of intellectual property". Note that "lending within the meaning of this Directive does not include making available between establishments which are accessible to the public", which we presume to mean that inter-library loans can hurt sales. Note particularly the recommendation that these rights "not be exercised…in a way which is contrary to the rule of media exploitation chronology as recognized in the Judgment handed down in Societe Cinetheque v. FNCF" (decision online) — first movie theaters then videotapes then broadcast television (comparable but more flexible digital media distribution chronologies could be important for DMBM design).

Denmark legislated the first public lending right in 1946 (GCH 156). Goldstein says, "Most countries provide no right against library lending of literary works. Of the countries that do prescribe a public lending right, all but one treat it as a neighboring right; Germany, the exception, treats it as an author's right" (GIC 5.4.I). Goldstein questions whether public lending fees should only be distributed to nationals, as the U.K. handles it, rather than authors of many nations. He also points out that TRU lending lacks "the quality of an intellectual property right in the sense that it is a right to control, or at least benefit from, the work's exploitation on some basis that approximates the work's success in the marketplace (GIC 3.2.4.2).

5.

Benefits of TRU

Right-holder

6.

Possible digital support

Since TRU lending is the law in several European countries, DMP should support whether or not libraries will be allowed to lend each individual piece of DM and possibly should support adherence to already established compulsory licensing schemes (perhaps no more is required for this than a list of titles checked out and how often they are checked out). It has been recognized that the related issue of End-User to End-User lending should also be supported by the DMP mapping. From a technical viewpoint, this might amount to little more than "check-in/check-out" privileges in both cases, libraries and EU-to-EU.

7.

Requirements

DMP shall support the creator's ability to restrict their DM creations from being circulated by libraries or from End-User to End-User, except that privacy rules establish a boundary beyond which the ability to restrict should be blocked.

8.

References