+++ KR21 publishes major CREATe report on e-Lending +++
In the digital environment, libraries have become dependent on supply agreements with intermediaries and publishers that come with detailed licensing conditions. As a consequence, libraries have lost their autonomy to build sustainable collections and to provide access to these. Contracts appear to trump library objectives, prescribing (often costly) bundles of e-Books, and delaying, or even withdrawing access altogether.
While the public function of libraries is articulated in numerous legal documents and international agreements, often in relation to fundamental rights (such as freedom of expression, rights to education, freedom to conduct scientific research and participation in cultural life), the underlying regulatory lever of exclusive rights under copyright law has not adjusted to the digital environment.
Concepts underpinning the EU public lending right, such as lawful access as a condition for a book to be made available for non-commercial lending, become meaningless if the only lawful access is a licensing contract.
Funded by the Knowledge Rights 21 (KR21) initiative with a grant from the Arcadia foundation, CREATe has conducted an extensive study on how public and academic libraries function in four European markets (Danmark, Ireland, Poland, UK) with respect to e-Lending. These are markets of different sizes and languages, with supply and demand characteristics that are mediated by complex institutional configurations, in particular with respect to platform intermediaries.
Based on a review of (difficult to obtain) contracts, interviews with library professionals and a review of secondary data, an evidence base of problematic practices is emerging. The study is an example of CREATe’s interdisciplinary work, combining empirical investigation with analysis under competition law and copyright law.
Below follows a summary of the report which can be downloaded here:
Click on the image to download
Barr, K., Eben, M., Frigeri, M. and Kretschmer, M. (2025). e-BOOKS: EVIDENCE AND ANALYSIS OF e-LENDING MARKETS IN EUROPE FROM COMPETITION LAW AND COPYRIGHT LAW PERSPECTIVES
This report examines markets for e-Book lending by academic and public libraries in Europe from competition law and copyright law perspectives. Drawing on a sample of licensing contracts and interviews with library professionals in four European markets (Denmark, Poland, Republic of Ireland and the UK), the markets are analysed in relation to theories of harm under competition law. The evidence indicates significant problems in e-Lending markets with respect to market structure, licensing and pricing.
Specifically, seven potential abuses of market power are identified and examined:
(1) Refusals to supply: outright and withdrawals;
(2) Constructive refusals to supply: restrictive licensing conditions/delayed supply;
(3) Bundling;
(4) Unfair trading conditions;
(5) Excessive pricing;
(6) Avoidance of the spirit of other laws, e.g. the copyright exception for text and data mining;
(7) Lack of transparency.
The analysis finds that market dominance in the sense of the Article 102 Treaty on the Functioning of the European Union (TFEU) is difficult to establish, but that alternative remedies under (national) provisions on abuse of economic dependence or under the new EU digital market type provisions (platform-to-business P2B regulation; Digital Markets Act) should be considered. While there is potential for intervention in narrowly defined markets (such as academic core textbooks), traditional competition law interventions may not be a natural fit for the governance of ‘non-commercial access to knowledge’ in Europe.
Finally, copyright law-related solutions are reviewed, to address the incoherence of the judgments of the Court of Justice of the European Union (CJEU) in VOB (C-174/15) and Tom Kabinet (C-263/18). While VOB insisted that lending must be possible in the digital context on the same terms as for physical books, Tom Kabinet made access to born-digital books subject to licensing contracts (under the communication to the public right). The public function of libraries as an essential cultural and scientific knowledge facilitator can only be sustained if they are able to build collections for lending. Libraries need to empower access to books that is not dependent on the wealth of the reader or solely governed by the licensing terms of rightsholders.
As the underlying regulatory layer shaping the lending of e-Books, copyright law offers policy opportunities that can draw on this analysis of market practices under competition law. Three groups of interventions are proposed:
(1) Clarification of what constitutes a lawful source
For physical books in a library’s possession, VOB arguably permits libraries to make a digital copy for e-Lending. But libraries also need to be confident that they can acquire e-Books by donation or in secondary markets (regardless of the licensing framework asserted in Tom Kabinet).
(2) Contract regulation
The legislator could intervene in the contracts between libraries, aggregators and publishers, for example by removing the requirement for a licensed copy specifically aimed at a library if there is no licensing.
(3) Limitation to exclusive rights
The legislator could require that a deposit copy of any born-digital book is made available to designated libraries specifically for lending beyond the premises. Alternatively, the legislator could provide an exception in analogy to the preservation copy that cultural heritage institutions are permitted to make under Art. 6 of the Copyright in the Digital Single Market Directive. Such an exception should not be overridable by the terms of licensing contracts or the presence of technological protection measures.
KR21 announced the report here:
https://www.knowledgerights21.org/news-story/elending-markets/
The findings were discussed in a webinar on 15 October with Martin Kretschmer, Kenny Barr, Magali Eben, and Matteo Frigeri. The session took place from 12:30 to 14:00 CEST / 11:30 to 13:00 BST. Full details are available at: https://www.knowledgerights21.org/news-story/15oct25-elending-webinar/ .
The slides from the webinar’s presentation are available – linked below:
Related links
A recent discussion of the e-Lending issue is available here, including a preview of the CREATe study:
https://communia-association.org/2025/09/29/video-recording-the-right-to-e-lend/
For an earlier analysis of e-Lending, see Matteo Frigeri, Martin Kretschmer, Péter Mezei, Copyright and eLending in public libraries: an incomplete revolution?, 15 (2024) JIPITEC 156: https://www.jipitec.eu/jipitec/article/view/400
KR21/Arcadia also funded a programme of CREATe work led by Kris Erickson, investigating technological protection measures:
https://www.create.ac.uk/blog/2024/12/17/video-game-emulation-report-cost-of-tpms/