06/02/2020
Resale of ‘second-hand' e-books requires the consent of the copyright holder
The Court of Justice of the EU has clarified recently (Case C-263/18 Nederlands Uitgeversverbond, Groep Algemene Uitgevers v Tom Kabinet, EU:C:2019:1111 [19 December 2019]) that the resale of e-books via online platforms falls under the authors' right to exclusively authorize or prohibit the communication to the public of their works and, consequently, the consent of the copyright holders should be obtained prior to the realization of such act of communication.
The Court analyzed whether the supply of online services for downloading e-books would fall under (i) the authors' right to exclusively authorize or prohibit the distribution to the public of their works (regulated under Article 4(1) D 2001/29/EC) or under (ii) the authors' right to exclusively authorize or prohibit the communication to the public of their works (Article 3(1) of the D 2001/29/EC).
The main difference between the applicability of one or the other of the two rights mentioned above resides in the fact that the right of authorizing the distribution, unlike the right to authorize the communication to the public, is subject to a limitation, i.e. the exhaustion of such right in relation to the original or to the copy of the work which is lawfully sold in the EU. If applicable, such exhaustion right would entitle the online services providers to claim their right in making available the e-books via online platforms, without the authors' consent.
The Court clarified that the online services represent an act of communication to the public and not an act of distribution, which leads to the conclusion that the exhaustion right (i.e. the limitation of the authors' right to prohibit the use of their works by third parties) is not applicable either. More specifically, the exhaustion right may be claimed only in case of tangible works (physical books). The supply of a book on a material medium and the supply of an e-book cannot be considered equivalent from an economic and functional point of view. Dematerialized digital copies, unlike books on a material medium, do not deteriorate with use, and used copies are therefore perfect substitutes for new copies. A parallel second-hand market of e-books 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.
Therefore, every online service which makes available to the public works protected by copyright is subject to authorization by the copyright holders.
