Uh-oh... More "fun" soon, shortly after
<https://controlleddigitallending.org/> and
<https://blogs.harvard.edu/copyrightosc/2019/03/01/fair-use-week-2019-day-five-with-guest-expert-david-r-hansen-and-kyle-k-courtney/>
debates.
Federico
-------- Messaggio inoltrato --------
Oggetto: Before the CJEU soon: the question of digital exhaustion
Data: Mon, 01 Apr 2019 11:01:00 +0000
Mittente: //copyrightblog.kluweriplaw.com/author/sabasluiter/ <>
Before the CJEU soon: the question of digital exhaustion
Saba Sluiter
*Introduction: digital exhaustion*
One of the main limitations to the right of distribution in European
copyright law is the principle or rule of exhaustion. This rule, known
as the first sale doctrine in US law, means that the right of
distribution is exhausted by the first sale or other transfer of
ownership of a copy of the work made by the rightholder or with his
consent (Article 4(2) InfoSoc Directive). This rule has mostly been of
straightforward application to physical copies of works, but can it be
applied to digital copies of works too? That is the question in the case
of /Tom Kabinet/
<http://curia.europa.eu/juris/document/document.jsf;jsessionid=9ea7d2dc30ddae2ce597207145f98ebab5523cf538b3.e34KaxiLc3qMb40Rch0SaxyOax10?text=&docid=204660&pageIndex=0&doclang=en&mode=doc&dir=&occ=first&cid=438637>
in a nutshell.
Tom Kabinet is a Dutch company that aims to create a second-hand
marketplace for e-books. It operates a website where you can upload used
e-books and buy used copies of e-books. It started its business in 2015.
Soon after, two organizations of publishers filed for a preliminary
injunction to stop Tom Kabinet from selling used e-books. Tom Kabinet,
however, believes it can rely on the CJEU’s ruling in /UsedSoft/
<http://curia.europa.eu/juris/liste.jsf?num=C-128/11> and claims that
there is digital exhaustion under EU law.
*The story so far*
The case started a couple of years ago when Tom Kabinet opened up a
platform that allows people to sell their second-hand e-books.
Publishers were unhappy with Tom Kabinet’s dealings and very quickly
filed for a preliminary injunction. In its preliminary ruling, the court
of Amsterdam
<http://copyrightblog.kluweriplaw.com/2015/01/28/the-dutch-courts-apply-usedsoft-to-the-resale-of-ebooks/>
did not impose an injunction, as it was unclear whether the resale of
e-books is allowed under European Copyright law.
In the preliminary appeal, the Appellate Court of Amsterdam followed the
district court’s ruling, but added that Tom Kabinet does not effectively
prevent the sale of illegal copies through its platform. It therefore
ordered
<https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:GHAMS:2015:66>
Tom Kabinet to cease its activities until it applies effective methods
to prevent this.
*The Court of The Hague*
After the preliminary procedure, the publishers went to the Court of The
Hague for a ruling on the merits. The publishers claim first that
offering the books for download infringes the right of communication to
the public. The Court of The Hague did not agree, because there is no
public, as only the person who buys the book can access it.
Second, the publishers argue that when Tom Kabinet copies a book to its
servers it makes an unauthorized reproduction of the work. Even when Tom
Kabinet sells an e-book, a copy of the work remains stored on its
servers. The Court considered that, following /UsedSoft/, even if the
right of distribution were exhausted, Tom Kabinet is not allowed to keep
a copy on its servers after it has resold a copy.
Third, the publishers consider Tom Kabinet’s practice an infringement of
their right of distribution. Tom Kabinet argued, in response, that the
right of distribution is exhausted by the first legal sale. The Court,
guided by the CJEU’s ruling in /UsedSoft/, found that there was a
previous sale, although it held – contrary to Tom Kabinet’s claims –
that the Computer Programs Directive is not applicable to e-books. It
continued by explaining that under EU law it is unclear whether this
would be allowed. After identifying several legal arguments for and
against digital exhaustion of e-books, the Court of The Hague settled on
three questions for the CJEU
<http://curia.europa.eu/juris/document/document.jsf;jsessionid=9ea7d2dc30ddae2ce597207145f98ebab5523cf538b3.e34KaxiLc3qMb40Rch0SaxyOax10?text=&docid=204660&pageIndex=0&doclang=en&mode=doc&dir=&occ=first&cid=438637>,
which it argues must be answered even if it is considered that Tom
Kabinet infringes the right of reproduction.
The first question is whether Tom Kabinet’s business actually involves
the right of distribution under Article 4(1) InfoSoc Directive. In
simple terms, does uploading for subsequent downloading by users in Tom
Kabinet’s model mean distributing a work? If the answer is yes, it
becomes relevant whether there is exhaustion of the right to
distribution within the meaning of Article 4(2) InfoSoc Directive. The
referring court asks whether the right to distribution is exhausted by
the first sale of the e-book in the scenario at issue.
The other two questions relate to the right of reproduction. The first
of those questions refers to the relationship between digital exhaustion
and the right of reproduction in Article 2 InfoSoc Directive. The
national Court wants to know whether, if there is in fact digital
exhaustion in the terms above, it should be considered that there is
consent to acts of reproduction necessary for the transfer of the
lawfully acquired copy of the work between successive acquirers (and, if
so, which conditions apply). The final question tackles the same issue,
but from the perspective of Article 5 InfoSoc Directive, on exceptions
and limitations. It asks whether the latter provision is to be
interpreted as meaning that the copyright holder cannot object to the
acts of reproduction necessary for the digital resale of exhausted
copies of works and, if so, which conditions apply.
*Considerations*
The Court of The Hague considered that the InfoSoc Directive does not
make clear whether intangible copies are also covered by the provisions
on the right of distribution. It found indications in favour of and
against a broader interpretation in the preamble of the Directive. It
also noted that a tangible copy of a work can be considered functionally
equivalent to an intangible copy, inviting the application of equal
treatment, although it noted that tangible copies suffer from wear and
tear, which might not apply directly to intangible copies. Finally, it
found that the CJEU has not given an answer to these questions in in its
previous judgments. With the /Tom Kabinet/ case, the CJEU gets a clear
chance to do so.
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