For several years now, electronic versions of books have been becoming increasingly popular. In the era of the pandemic and with easier digitisation, the e-book market share is growing by several tens of percent, much to the delight of modern bookshops, allowing for wider access to culture without leaving home. Since we treat e-books today in exactly the same way as their paper predecessors, can we, after reading them, legally "lend" them on flash drives to our loved ones, just as we did in the past with a thick volume of Harry Potter?
💡 Key takeaways
- The creator of a work loses their economic right to a copy upon its sale (the so-called "exhaustion of rights"). However, in the case of digital e-books, the CJEU found that this principle works completely differently in digital markets, and reselling still requires the publisher's official consent.
- However, Polish law permits a phenomenon known as "allowable private use".
- Personal use allowances allow you to gift or lend an e-book to a select list of real people, for instance within your family, extended family, or close social circle.
Under current law, sharing a work with friends via torrents or massive file-sharing sites goes absolutely beyond fair use and is treated as classic criminal piracy, breaching licensing restrictions.
According to copyright law, can you lend "used" e-books from the internet?
Exhaustion of rights and lending
Addressing the complexities of the digital market requires looking at Polish copyright law (u.p.a.). The most important institution for the physical realm is Article 51 "Exhaustion of Rights" – the moment an author places a book in Empik and sells it for the first time for payment, they lose control over that specific copy you've purchased. From this point on, you can legally burn it, lend it, or sell it (even at a profit) to strangers in an antique shop, and no one will ever accuse you of anything.
However, in light of the high-profile and stringent judgment from the Court of Justice of the EU (CJEU), The exhaustion of rights principle has been completely denied with regard to digitised e-books (as they "lack form and substance"). The official resale of a used e-book "on Vinted" or on a foreign Allegro site would expose you to swift accusations from the prosecutor's office – and to do so, you would always need expensive authorisation from the copyright holder themselves.
Personal use allowed
Seeking a loophole for borrowing in the privacy of one's home, we rely on Article 23 (Permitted personal use). The legislator knows that the tradition of sharing a purchased coal or music within the home cannot be eradicated. The scope of personal use in the Act covers the use of works by a strong and exclusive "circle of persons connected by a personal relationship (family, affinity, social relationship)".
A dissonance emerges – can you create entirely new copy files in this way (by duplicating a file and sending it via email to five aunts)?
Experts (legal scholars) confirm that this provision exists for the following reason: under 100%, you can legally export and make a digital copy of a work you have lawfully acquired for your wife or father, just as people used to record blank cassette tapes ‘TDK’ to take on a car journey with your best friend from the block.
An e-book is a book, not a computer program
Statutory surveillance strictly prohibits "authorised personal use" in relation to protected code computer programs (i.e. the latest game "The Witcher" or antivirus software). Can a clever prosecutor argue that an e-book in ".epub" format is a program?
No. The CJEU has clarified unequivocally: an e-book is a digital print of data, and for something to be a "program" it must have its specific executable code and machine-level source code – a file with a book on a smartphone is, from a licensing perspective, safe and still just a book.
Summary and boundaries of ebook sharing
We can legally share and reproduce our own e-book files with family members and our closest friends (thanks to Personal Use Provisions). The absolute prerequisite is that we have absolute and firm certainty that none of the entrusted individuals (e.g. a trusted friend) will "upload it elsewhere to a massive, external database on a forum for hundreds of people". If you were to do so, fair use would be violated, and we would be exposed to accusations of infringing copyright. The law is for the wise and for small circles – it is worth learning to support the digital economy and authors wisely and responsibly.