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Resale of e-books requires authorization - CJEU

Bloomsbury IP/IT Law Briefing

Author:
James Nurton
Publisher:
Bloomsbury Professional

The CJEU ruled 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’ rather than ‘distribution to the public’ in its judgment in Nederlands Uitgeversverbond & Groep Algemene Uitgevers v Tom Kabinet Internet BV, Tom Kabinet Holding BV & Tom Kabinet Uitgeverij BV, Case C-263/18,ECLI:EU:C:2019:1111) on 19 December.

Under Article 3(3) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (Infosoc Directive), the communication to the public right is not exhausted by any communication to the public or making available to the public.

The dispute in this case was between two associations representing copyright holders on one hand and Tom Kabinet, which operates a website with a virtual market of second-hand e-books offered via a reading club, on the other hand. The associations argued that Tom Kabinet was making an unauthorized communication to the public.

Reviewing the WIPO Copyright Treaty (WCT) and the background to the Infosoc Directive, the court reasoned that communication to the public should ‘be understood in a broad sense covering all communication to the public not present at the place where the communication originates and, thus, any such transmission or retransmission of a work to the public by wire or wireless means, including broadcasting.’

The court distinguished the case of e-books from that of computer programs, where it has previously ruled that there is no distinction between tangible and intangible copies (UsedSoft, C-128/11, ECLI:EU:C:2012:407) based on its interpretation of Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs.

Unlike computer programs, said the court, the supply of a book on a material medium and the supply of an e-book cannot be considered equivalent:

‘dematerialised digital copies, unlike books on a material medium, do not deteriorate with use, and used copies are therefore perfect substitutes for new copies. In addition, exchanging such copies requires neither additional effort nor additional cost, so that a parallel second-hand market would be likely to affect the interests of the copyright holders in obtaining appropriate reward for their works much more than the market for second-hand tangible objects.’

The court reiterated that communication to the public involves two cumulative criteria: an act of communication of a work and the communication of that work to a public. Tom Kabinet makes the works concerned available to anyone registered with the reader’s club, said the court: ‘Accordingly, the supply of such a service must be considered to be the communication of a work within the meaning of Article 3(1) of Directive 2001/29, irrespective of whether that person avails himself or herself of that opportunity by actually retrieving the e-book from that website.’

As anyone can join the club, and there are no restrictions on downloads, ‘the number of persons who may have access, at the same time or in succession, to the same work via that platform is substantial’. The work therefore must be regarded as being communicated to a public.

The judgment is broadly in line with the Advocate General’s Opinion in the case, which was published in September.