The Court of Justice of the European Union (CJEU) has ruled that the supply to the public by downloading, for permanent use, of a ‘second-hand’ e-book falls within the right of “communication to the public” subject to the author's authorisation (Case C-263/18), in a judgment delivered on Thursday 19 December.
Nederlands Uitgeversverbond (NUV) and Groep Algemene Uitgevers (GAU), two associations defending the interests of Dutch publishers, brought an action before the Court in The Hague (Netherlands) to prohibit, inter alia, the company Tom Kabinet from making e-books available to members of its “reading club” on its website or from reproducing those books.
NUV and GAU believed that by offering “second-hand” e-books for sale through this reading club, Tom Kabinet was making unauthorised communication to the public of these books and infringing their affiliates' copyrights in these e-books.
Tom Kabinet maintained, on the contrary, that NUV and GAU, following the sale of the electronic books in question, no longer enjoyed the exclusive right to authorise or prohibit their distribution to the public. For the company, its reading club activities fall under the distribution right, which is subject under the EU Copyright Directive (2001/29) to a rule on exhaustion when the object concerned - in this case e-books - has been sold in the EU by the rightholder or with their consent.
Agreeing with NUV and GAU, the Court considered that the supply by downloading, for permanent use, of a second-hand e-book does not fall within the right of “distribution to the public”, but within the right of “communication to the public”. Hence, the rule on exhaustion does not apply in this case, which means that the “communication to the public” is subject to the author's permission.
The Court further considered that the Union legislature had intended to reserve the rule of exhaustion to the distribution of tangible objects, such as books made of physical media. In the Court's view, the application of that rule to e-books would be liable to affect the holders' interest in obtaining appropriate remuneration much more significantly than in the case of books made of a physical medium, since digital copies of e-books do not deteriorate with use and are therefore perfect substitutes for new copies.
To consult the judgment of the Court: https://bit.ly/38X7gFt (Original version in French by Damien Genicot)