Is A New International Law On E-book ‘Lending’ Necessary To Satisfy The Requirements of International Human Rights Law?

Abstract: In the last few years there has been a huge growth in the e-book market, and many copyrighted works are published as e-books before the analogue versions are printed, if they are ever printed. In order to provide e-book lending services, libraries must sign copious amounts of license agreements with materials distributors. Due to restrictive terms in license agreements, legal exceptions to copyright are negated, and libraries are more limited in their ability to deal with the copyrighted work than ever before. The restrictions on distribution and access to e-books in libraries affects an author’s rights to their moral and material interests resulting from any scientific, literary, or artistic ’production’ of which he or she is the author, because of restrictions on the dissemination of their work. Author’s rights are protected under article 17 of the UDHR (the right to property), article 15 ICESCR, and under copyright law. The practice of restrictive licenses also takes away from the enjoyment of the following human rights under the International Covenant on Economic,Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR) : the right to education, the right of everyone to take part in cultural life, the right to share in scientific advancements and its benefits, and the freedom of expression. Both international copyright law and human rights law aim to strike the right balance between the rights of individual users and the rights of authors, but neither legal regime is functioning optimally with respect to e-book lending. How do we reform copyright to make borrowing e-books from libraries as straightforward and economic as borrowing shelfbooks? I argue that it is necessary for the creation of a new international rule to harmonize e-book lending practices in accordance with human rights’ requirements, because merely exploiting the flexibilities of copyright law does not achieve human rights realization. The new rule would include a contract override clause invalidating restrictive licensing terms that conflict with copyright L&Es. It would also include minimum mandatory copyright limitations and exceptions (L&Es) for libraries including a blanket exception to the exclusive right of reproduction of the copyrighted work and/or a rule that would make the doctrine of exhaustion applicable to the digital world. Harmonization, via soft law or treaty law, would persuade States to follow suite in their domestic legislation and court decisions. It is also important to highlight the persistent mistake in the vocabulary used amongst the researchers of licenses: they lobby for ‘e-book ownership’ (the library would buy the e-book) to replace the license agreements. However copyright ownership must be discussed in terms of its component parts since the libraries cannot attain copyright ownership but instead, with shelfbooks, they rely on the right of distribution and the doctrine of exhaustion to fulfil their mandate. However, the doctrine of exhaustion and the right of distribution only apply to analogue versions, according to the Agreed Statement of the WCT. Ownership of the copyright in the content cannot transfer completely to the library, but some of the rights in the copyright bundle could transfer in exchange for reasonable remuneration. The conclusion is that the new international rule on copyright L&Es would include a blanket exception to the right of reproduction, or expand the applicability of the right of distribution to the digital world, to enable the librarians to make a sufficient amount of non-commercial copies for the borrowers, and for preservation purposes. This rule would have to include a contract override clause to nullify any contractual term that undermined the legitimate exceptions to copyright that libraries depend upon to fulfil their function.