Can I share purchased e-books with family and friends?

e-book reader
Piotr Kłodziński|
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For several years now, electronic versions of so-called books have become increasingly popular. e-books, especially now, during the coronavirus pandemic, when leaving home increases the risk of infection and libraries are often closed or their use is limited. The e-book market has increased by several dozen percent, to the delight of modern online bookstores and the great sadness of traditional ones. Reading books in any form as an activity for personal development should be strongly supported.
After reading such an electronic book, can we not only recommend it, but also lend it to friends or family?  (After all, we want our loved ones to be able to spend their free time safely, pleasantly and usefully!)

In order to answer this question, first of all, attention should be paid to two institutions regulated in the Act of February 4, 1994 on copyright and related rights (Journal of Laws of 1994, No. 24, item 83, hereinafter referred to as "UPA") . The first of them is the so-called exhaustion of the right regulated in Art. 51 section 3 of the Act, according to which, once a copy of the work is placed on the market, the author loses the right to consent to its further placing on the market, with the exception of rental and lending. Lending is, in accordance with the definition of Art. 6 section 1 point 8) handing over a copy for temporary, free use - which is essentially equivalent to lending the e-book to family or friends. Consequently, in the analyzed situation it will not be possible to invoke exhaustion of the right. Moreover, in a recent judgment, the Court of Justice of the European Union ruled that the sale of an e-book does not constitute public dissemination or making the work available to the public, and exhaustion of the right only applies to works in a material form. Therefore, according to this judgment, the resale of an e-book requires the consent of the entity holding the copyright, as the right is not exhausted.

The second institution is the so-called permitted personal use, which is regulated in Art. 23 of this Act. The essence of fair use comes down to the fact that, in the opinion of the legislator, both national and EU, it is necessary to a certain extent to allow persons other than those authorized to use the work under the license to use the work. This is justified in two ways - firstly, the idea is not to create dead law that will not be possible to apply in normal interpersonal relations - it is therefore a pragmatic approach. In turn, the second one has an economic justification and its aim is to limit the potential monopoly of the creator. Pursuant to Art. 23 section 2 of the Act, "the scope of one's own personal use includes the use of single copies of works by a group of persons in a personal relationship, in particular kinship, affinity or social relationship." Therefore, if we lend our e-book to our family members or closest friends, there will be no infringement of copyright to the work. The question arises whether in such a situation it is possible to create several copies of the work for personal use and pass them on to family and closest friends? The regulations in this area are not clear because the legislator is unable to keep up with technological changes. Opponents of this solution point out that a work can only be made available together with the medium on which it was saved, usually a reader. However, the prevailing view is that it is permitted because this is the essence of permitted personal use and the use of this institution is based, among others, on: just by making copies of, for example, a paper book. In this respect, we can refer to the wording of the act itself, which uses the concept of "copies of a work", thus allowing for the plural. Other digital files, e.g. music files, are treated similarly. Moreover, this is also justified by the wording of Art. 231, which allows temporary and incidental reproduction of the work, which has no independent economic significance and is necessary for the lawful use of the work. It is worth pointing out, however, that such an argument is questionable, because the purpose of introducing this provision and its function are completely different - it concerns the transfer of files between intermediaries, as well as the creation of backup or current copies by a program in order to ensure the proper operation of a specific program. However, you should remember to maintain a real personal relationship. The institution of fair use is an exception to general principles and therefore will have to be interpreted narrowly, or even very narrowly. The legality of such an action should be treated as an exception to the rule of criminality, rather than a right that we can exercise by sending a file to several dozen people.

It is worth emphasizing one more important issue here - permitted personal use has been excluded in relation to computer programs in accordance with Art. 77 section 1. Therefore, the question arises whether such an exclusion will not affect the issues of the e-book, which remains in the electronic version. However, the answer seems very simple - of course not. The doctrine and case law have already developed the concept of a computer program, which is not defined by law. This took place in two CJEU judgments C-393/09 and C-406/10, according to which a computer program exists only in the form of source code, object code and technical documentation - a file with a book is therefore still a book, simply in electronic form. . It cannot under any circumstances be considered a computer program.

To sum up - as a rule, we can share our e-books with family and closest friends, provided, however, that it is actually the circle of people closest to us and provided that we are absolutely sure that none of these people will share it further in another form - e.g. publicly on a downloadable website or in torrents. In such a case, the work would be illegally reproduced and the license would be violated. When sharing our e-book with family or closest friends, we can create a copy of the file - if possible without breaking any security, but such copies cannot be distributed by anyone or made available to more people.

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For several years now, electronic versions of so-called books have become increasingly popular. e-books, especially now, during the coronavirus pandemic, when leaving home increases the risk of infection and libraries are often closed or their use is limited. The e-book market has increased by several dozen percent, to the delight of modern online bookstores and the great sadness of traditional ones. Reading books in any form as an activity for personal development should be strongly supported.
After reading such an electronic book, can we not only recommend it, but also lend it to friends or family?  (After all, we want our loved ones to be able to spend their free time safely, pleasantly and usefully!)

In order to answer this question, first of all, attention should be paid to two institutions regulated in the Act of February 4, 1994 on copyright and related rights (Journal of Laws of 1994, No. 24, item 83, hereinafter referred to as "UPA") . The first of them is the so-called exhaustion of the right regulated in Art. 51 section 3 of the Act, according to which, once a copy of the work is placed on the market, the author loses the right to consent to its further placing on the market, with the exception of rental and lending. Lending is, in accordance with the definition of Art. 6 section 1 point 8) handing over a copy for temporary, free use - which is essentially equivalent to lending the e-book to family or friends. Consequently, in the analyzed situation it will not be possible to invoke exhaustion of the right. Moreover, in a recent judgment, the Court of Justice of the European Union ruled that the sale of an e-book does not constitute public dissemination or making the work available to the public, and exhaustion of the right only applies to works in a material form. Therefore, according to this judgment, the resale of an e-book requires the consent of the entity holding the copyright, as the right is not exhausted.

The second institution is the so-called permitted personal use, which is regulated in Art. 23 of this Act. The essence of fair use comes down to the fact that, in the opinion of the legislator, both national and EU, it is necessary to a certain extent to allow persons other than those authorized to use the work under the license to use the work. This is justified in two ways - firstly, the idea is not to create dead law that will not be possible to apply in normal interpersonal relations - it is therefore a pragmatic approach. In turn, the second one has an economic justification and its aim is to limit the potential monopoly of the creator. Pursuant to Art. 23 section 2 of the Act, "the scope of one's own personal use includes the use of single copies of works by a group of persons in a personal relationship, in particular kinship, affinity or social relationship." Therefore, if we lend our e-book to our family members or closest friends, there will be no infringement of copyright to the work. The question arises whether in such a situation it is possible to create several copies of the work for personal use and pass them on to family and closest friends? The regulations in this area are not clear because the legislator is unable to keep up with technological changes. Opponents of this solution point out that a work can only be made available together with the medium on which it was saved, usually a reader. However, the prevailing view is that it is permitted because this is the essence of permitted personal use and the use of this institution is based, among others, on: just by making copies of, for example, a paper book. In this respect, we can refer to the wording of the act itself, which uses the concept of "copies of a work", thus allowing for the plural. Other digital files, e.g. music files, are treated similarly. Moreover, this is also justified by the wording of Art. 231, which allows temporary and incidental reproduction of the work, which has no independent economic significance and is necessary for the lawful use of the work. It is worth pointing out, however, that such an argument is questionable, because the purpose of introducing this provision and its function are completely different - it concerns the transfer of files between intermediaries, as well as the creation of backup or current copies by a program in order to ensure the proper operation of a specific program. However, you should remember to maintain a real personal relationship. The institution of fair use is an exception to general principles and therefore will have to be interpreted narrowly, or even very narrowly. The legality of such an action should be treated as an exception to the rule of criminality, rather than a right that we can exercise by sending a file to several dozen people.

It is worth emphasizing one more important issue here - permitted personal use has been excluded in relation to computer programs in accordance with Art. 77 section 1. Therefore, the question arises whether such an exclusion will not affect the issues of the e-book, which remains in the electronic version. However, the answer seems very simple - of course not. The doctrine and case law have already developed the concept of a computer program, which is not defined by law. This took place in two CJEU judgments C-393/09 and C-406/10, according to which a computer program exists only in the form of source code, object code and technical documentation - a file with a book is therefore still a book, simply in electronic form. . It cannot under any circumstances be considered a computer program.

To sum up - as a rule, we can share our e-books with family and closest friends, provided, however, that it is actually the circle of people closest to us and provided that we are absolutely sure that none of these people will share it further in another form - e.g. publicly on a downloadable website or in torrents. In such a case, the work would be illegally reproduced and the license would be violated. When sharing our e-book with family or closest friends, we can create a copy of the file - if possible without breaking any security, but such copies cannot be distributed by anyone or made available to more people.

5/5 - (1 vote)