shutterstock_649719514_tierneymj
19 December 2019CopyrightRory O'Neill

Sale of second-hand e-books infringes copyright, rules CJEU

The EU’s highest court has ruled that the exhaustion of copyright does not apply to e-books.

In a highly-anticipated decision, issued today, December 19, the Court of Justice of the European Union (CJEU) held that offering ‘second-hand’ e-books for sale qualifies as an unauthorised “communication to the public” under the 2001 InfoSoc Directive.

The court’s ruling largely follows the opinion of EU advocate general (AG)  Maciej Szpunar, issued in September.

The ruling stems from a dispute involving Dutch company Tom Kabinet, which purchases e-books from both individuals and retailers and resells them online.

Two groups representing Dutch copyright owners, including authors and publishers, filed a copyright infringement lawsuit in Amsterdam against Tom Kabinet.

An appeals court based in The Hague asked the CJEU to step in, seeking clarification on Tom Kabinet’s argument that the resale of e-books was permitted under the principle of copyright exhaustion.

When a book is sold in physical form, the copyright for the work is said to have been ‘exhausted’, in other words, the purchaser is free to sell it on without violating the author or publisher’s IP.

Tom Kabinet argued that the exact same principle should hold for digital copies.

The CJEU, following the AG’s opinion, ruled that rights exhaustion in the case of e-books would damage rights owners much more than in the case of physical copies.

This is because e-books do not deteriorate with use and are therefore a perfect substitute for new physical copies of the work.

The Dutch copyright groups argued that Tom Kabinet’s resale of the e-books constituted an unauthorised “communication to the public” of the copyright-protected material under Directive 2001/29/EC (commonly known as the InfoSoc Directive).

Under EU law, exhaustion of copyright only applies to the right of distribution. In today’s judgment, the CJEU found that downloading an e-book is not covered by the right of distribution, but rather the right of communication to the public, which cannot be exhausted.

The court referred to the World Intellectual Property Organisation (WIPO) Copyright Treaty, which underpins the InfoSoc Directive. According to the court, that treaty holds that rights exhaustion should be “reserved for the distribution of tangible objects,” such as physical books.

Did you enjoy reading this story?  Sign up to our free daily newsletters and get stories like this sent straight to your inbox.

Today's top stories:

IPOS rejects Ferrero Rocher 3D mark

Brazil IP office ‘privatisation’ plan causes uproar

Milan court orders Dolce & Gabbana payout to Maradona

Already registered?

Login to your account

To request a FREE 2-week trial subscription, please signup.
NOTE - this can take up to 48hrs to be approved.

Two Weeks Free Trial

For multi-user price options, or to check if your company has an existing subscription that we can add you to for FREE, please email Adrian Tapping at atapping@newtonmedia.co.uk


More on this story

Copyright
21 September 2020   A New York judge has granted an enforcement group of educational publishers a preliminary injunction against 63 e-book websites accused of selling illegal and unlicensed e-books.
Copyright
19 November 2020   Music rights owners can’t use EU copyright law to claim compensation for the use of their work in “audiovisual works” such as TV broadcasts, the Court of Justice of the European Union has ruled.
Copyright
29 March 2023   Judge says online library’s lending of eBooks not covered by ‘fair use’ | Four publishers alleged infringement of 127 books | Full details on judge’s reasoning | Morrison Foerster | Association of American Publishers.