Home » Authorization for the sale of second-hand electronic books – The Law

Authorization for the sale of second-hand electronic books – The Law

by archyw


  1. Facts

The case arises in the context of a dispute between, on the one hand, two Dutch associations Nederlands Uitgeversverbond (“NUV”) and Groep Algemene Uitgevers (“GAU”) whose object is to protect the interests of the publishers of the country and for another, Tom Kabinet, a publisher of books, e-books and databases that runs an Internet site launched in 2014 that offers an online “reading club” through which it sells “second-hand” e-books. NUV and GAU decided to go to the courts of the country asking for the precautionary prohibition of the service offered by Tom Kabinet for infringement of intellectual property rights, a request that was rejected by the courts.

As of June 2015, Tom Kabinet modified the e-book sales services by creating the “Tom Leesclub” in which he offered his members, in exchange for a sum of money, “second-hand” e-books that had been acquired by Tom Kabinet or donated free of charge by club members.

The two associations again filed a lawsuit requesting that they ban the service since the copyright of their members was being infringed “by making available or reproducing electronic books.” NUV and GAU alleged that Tom Kabinet was conducting “unauthorized communication to the public.”

Although the Court of First Instance in The Hague seemed to be clear that an act of communication to the public was not taking place, it was not clear whether an act of distribution was taking place and whether the principle of exhaustion was applicable, therefore which posed four questions to the Court that focused on the concept of distribution, the main question being the following: should Article 4 (1) of the Directive be interpreted [2001/29] Regarding the remote availability, by means of downloads, for their use indefinitely, of electronic books (that is, digital copies of books protected by copyright) in exchange for the payment of a price that allows the owner of the copyright obtain a remuneration corresponding to the economic value of the copy of the work of which it is the owner?

  1. Pronouncements

The Court concluded that the sale of used electronic books is not an act of distribution but of communication to the public, in the form of interactive availability or on demand.

Specifically, the CJ answered the question raised by the Hague courts concluding that the expression “communication to the public” of a work covers interactive acts of transmission on demand, thus confirming that the right of communication to the public is also relevant when It is possible for several unrelated persons to have access from different points and times, within the meaning of Article 3 (1) of Directive 2001/29 / EC, to a work found on an access Internet site public, qualifying that such right covers any communication “other than the distribution of physical copies”, while physical copies that are put into circulation as tangible objects belong to the scope of the right of distribution.

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Finally, the Court declared that, for an act to be considered as communication to the public, the work must be communicated with a specific technique, different from those previously used, or, failing that, before a new public. Taking into account that the making available of an electronic book is generally accompanied by a user license that authorizes its reading by the user who has downloaded the electronic book, from their own computer, it is necessary to consider that a communication, such as the one made by Tom Kabinet, is performed before an audience that was not taken into consideration by the copyright holders, and therefore should be viewed as a new audience.

  1. Commentary

The ruling of the Court whose main conclusion is that “the supply to the public by downloading an electronic book for permanent use is included within the concept of” communication to the public “and, more specifically, that of” making available to the public […] within the meaning of Article 3 (1) of Directive 2001/29 / EC ”is of great interest, since it once again delineates the delimitation between the concept of communication to the public and that of distribution in the digital field, which already had been interpreted in 2012 by the Court in what is known as the UsedSoft case (C-128/11) but, with computer programs being the object of analysis, Directive 2009/24 on the legal protection of computer programs was applied .

Author: Ines de Casas. Elzaburu Yearbook, 2019 Edition (compilation of comments on European jurisprudence on Industrial and Intellectual Property Law carried out by Elzaburu).

Judgment of the CJEU of December 19, 2019 from the NEO database. More information and the possibility to try the product for free at https://www.efl.es/catalogo/bases-de-datos-juridicas-neo

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English Version:

Authorisation for the sale of second-hand e-books. Judgment of the Court of Justice of 19 December 2019, Tom Kabinet (C-263/18)

1. Background.

The case arises in the context of a dispute between, on the one hand, two Dutch associations, Nederlands Uitgeversverbond (“NUV”) and Groep Algemene Uitgevers (“GAU”), whose purpose it is to protect the interests of the country’s publishers and, on the other, Tom Kabinet, a publisher of books, e-books and databases that operates a website launched in 2014 offering an online “reading club” through which it sells “second-hand” e-books. NUV and GAU decided to bring actions before the country’s courts seeking an injunction prohibiting the service offered by Tom Kabinet for infringement of intellectual property rights, an application that the courts rejected.

From June 2015 onwards, Tom Kabinet modified the e-book sales services offered up to that point by creating the “Tom Leesclub” through which it offered to its members, in return for a sum of money, “second-hand” e-books that had been acquired by Tom Kabinet or had been donated free of charge by the club’s members.

The two associations filed a new action requesting the service’s prohibition due to its infringement of their affiliates’ copyright “by the making available or the reproduction of e-books”. NUV and GAU alleged that Tom Kabinet was making “an unauthorised communication to the public”.

Although the Hague Court of First Instance seemed to be clear that an act of communication to the public was not occurring, it requested clarification as to whether or not an act of distribution was taking place and whether or not the principle of exhaustion was applicable. It therefore referred four questions centred around the concept of distribution to the CJ for a preliminary ruling, with the main question asking whether “article 4 (1) of Directive [2001/29] could be interpreted as including the making available remotely by downloading, for use for an unlimited period, of e-books (being digital copies of books protected by copyright) at a price by means of which the copyright holder receives remuneration equivalent to the economic value of the work belonging to him?”.

2.Findings.

The CJ concludes that the sale of second-hand e-books is not an act of distribution but of communication to the public, within the modality of making works available on an interactive or on-demand basis.

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Specifically, the CJ answers the question referred by the courts of The Hague by concluding that the expression “communication to the public” of a work covers acts of interactive and on-demand transmission, thus confirming that the right of communication to the public is also pertinent when several unrelated persons have access from different points and at different times, within the meaning of Article 3 (1) of Directive 2001/29/EC, to a work which is on a publicly accessible website, clarifying that such right covers any communication “other than the distribution of physical copies”, since physical copies which can be put into circulation as tangible objects are covered by the distribution right.

Finally, the CJ holds that, for an act to be considered as a communication to the public, the work must be communicated using specific technical means, different from those previously used or, failing that, to a new public. Taking into account that the making available of an e-book is generally accompanied by a user licence that authorises the user who has downloaded the e-book to read it from his or her own computer, a communication such as that effected by Tom Kabinet must be considered to have been made to a public that was not already taken into account by the copyright holders and that must therefore be considered a new public.

3. Remarks.

The CJ’s ruling – whose main conclusion is that “the supply to the public by downloading, for permanent use, of an e-book is covered by the concept of ‘communication to the public’ and, more specifically, by that of ‘making available to the public within the meaning of Article 3 (1) of Directive 2001/29/EC – is of great interest, in that it further clarifies the distinction between the concept of communication to the public and that of distribution in the digital sphere, which had already been considered by the CJ in the so-called UsedSoft case (C-128/11) in 2012, but, as the products assessed in that case were computer programs, the court applied Directive 2009/24 on the legal protection of computer programs. Inés de CASAS


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