In the category new business models, today TechDirt draws attention to the new phenomenon of e-book lending services. Besides the e-book clubs on Facebook there is now also eBookFling.com, a platform where people can “swap, borrow or lend” e-books. Interested readers may download an e-book to their e-reading device of choice for fourteen days for either $ 1.99 or with the points they earn by offering e-books on the platform. After two weeks the e-book will automatically disappear from the device and returned to the original owner, says eBookFling. TechDirt wonders whether such a service would survive in court.

Looking at the European and Dutch context, the eBookFling service wouldn’t do very well. The European Directive 92/100/EC, in short the Rental and Lending Directive, provides that the rental or lend of a work falls under the scope of the rights holders’ right to make a work available and is thus an act which he may authorize or prohibit (article 1, paragraphs 1, 2 and 3). The common denominator is that in both the renting and lending situation the copyrighted work is made available for use for a limited period of time. The difference between renting and lending, in short, is that renting involves a direct or indirect economic or commercial advantage and lending does not. These provisions are almost literally copied into article 12 paragraphs 1, 2 and 3 of the Dutch Copyright Act.

However, now that eBookFling demands a (on money valuable) compensation for the ‘swap’ or ‘lending’ of e-books, it’s service would under Community law not be qualified as a lending service, but rather as a rental service. If the e-book publishers haven’t authorized eBookFling for lending out their e-books, its service probably wouldn’t stand very strong in the European and Dutch courts.

BookSwim.com , who launched the eBookFling initiative, also has a paid service for renting(!) and delivering physical books in the U.S.. It is possible that it has a deal with book publishers for both services, but given the design of the service (that users determine the services’ supply by offering their e-books for swap or lending, while eBookFling earns money) seems unlikely.

Source: TechDirt