EU Court of Justice finds reselling ebooks violates European copyright law

By Emmanuel Legrand

 

The Court of Justice of the European Union (CJEU) has ruled that reselling electronic books violates EU copyright law, following a request from a Dutch appeals court in The Hague to clarify the legal framework for second-hand markets for digital creative works. The CJEU ruled that e-book resales qualify as unauthorised communication to the public.

  The case was initiated in 2014 by two organisations — Nederlands Uitgeversverbond (NUV) and Groep Algemene Uitgevers (GAU) — which represent the interests of publishers in the Netherlands against Tom Kabinet Internet, a digital platform that offered second-hand digital versions of books.

  The CJEU was asked questions concerning a) whether the supply of e-books by downloading online for permanent use is covered by the right of distribution within the meaning of Article 4 of Directive 2001/29, b) whether that right is exhausted by such a supply made with the author’s consent, and c) whether the acts of reproduction necessary for the subsequent transfer of an e-book acquired in that way are lawful. 

 

Important ramifications

 

  The Court found that "the supply by downloading, for permanent use, of an e-book is not covered by the right of 'distribution to the public' provided for by Article 4(1) of Directive 2001/29, but that it is covered by the right of ‘communication to the public’ provided for in Article 3(1) of that directive, in which case exhaustion is excluded under paragraph 3 of that article."

 

  The CJEU found that "in the present case, since the making available of an e-book is generally accompanied by a user license authorising the user who has downloaded the e-book concerned only to read that e-book from his or her own equipment, it must be held that a communication such as that effected by Tom Kabinet is made to a public that was not already taken into account by the copyright holders and, therefore, to a new public."

  In a Twitter post, Tom Kabinet said the CJEU "overlooked the fact that we actively enforce one-copy one-user and therewith come to a conclusion that is not in our advantage. It's up to The Hague's court to check the facts now and set it straight."

 
  Analysing the conclusions from the CJEU, the National Law Review noted that although the decision only concerns ebooks, it "may also have important ramifications for the music and film industries, since the CJEU’s reasoning indicates that the resale of a download link to a permanent copy of a music or video file would also require the consent of the rights holders."