No B****t dividend for authors

In the Public Lending Right Scheme 1982 (Amendment) (EU Exit) Regulations 2018 which were published on 13 August (they have not yet been laid before Parliament), the Government has paved the way for public lending right to carry on unchanged after the UK leaves the EU. As PLR is not a creature of EU law, you might wonder why this is necessary: the answer is that the Regulations will ensure that UK-resident authors will still be eligible to register for PLR after the UK is no longer a member of the EEA. This requires an amendment of the definition of "eligible person", effected by these regulations - made under the Henry VIII powers given by the European Union (Withdrawal) Act 2018.

The amendment inserts the words "the United Kingdom or" before "EEA", meaning that the geographical extent of the scheme remains the same - authors resident in other EEA countries (or, from "exit day", authors in EEA countries) will be eligible. Since PLR is distributed out of a set fund, the amount available per loan depends on how many eligible authors there are. Leaving the EU might have meant a huge reduction in their numbers - but it won't, and my PLR statements will probably continue to tell me that I haven't earned enough to justify the writing of a cheque. Still, it's not the sort of windfall I'd have wanted.

Lending of electronic books is comparable to the lending of traditional books

Lending a digital book to a reader must be the equivalent of lending a physical copy: it hardly seems to need thinking about, does it? But in the copyright world things are often not as simple or logical as they first appear. When an e-book is lent to a reader, is that the restricted act of lending (or perhaps rental, if money changes hands) or is it making available to the public? And should it fall within public lending rights schemes, which it would if it were regarded as lending? Which act it is, determines whether authors are remunerated for the activity. In the UK it has been treated as "making available", and therefore outside the scope of public lending right, a matter of concern to my trade union the Society of Authors - but perhaps not for much longer.

In Case C-174/15, Vereniging Openbare Bibliotheken v Stichting Leenrecht, Advocate-General Szpunar has indicated that the activity should be treated as a form of lending. Provided it is on the "one copy, one user" basis (the library lends the e-book to one person, and can't lend it to another until it has been "returned") this is economically no different from lending a hard-copy book. The Advocate-General considered that the fact that the 2006 rental and lending directive was silent on the matter of e-books indicated no more than that the technology was in its infancy - a bit of a feeble excuse, because although the Kindle was launched in November 2007, less than a year after the Directive was passed, Sony had produced the Librie in 2004 and the Reader in 2006. More to the point, perhaps, e-books have been around since at least 1971 when Michael S Hart set up the very wonderful Project Gutenberg, so why didn't the directive take into account what was already pretty old technology?

Whatever the answer to that, the Advocate-General thinks that the directive should be read so as to cover e-books. This is exactly the sort of judicial activism that gives the Court of Justice a bad name - not reason to vote Out tomorrow, but certainly (for me) a reason to be with Jeremy Corbyn - about 70 per cent "remain". If the EU produced half-decent legislation to start with, I might be up to 75 or 80 per cent.

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