Internet downloads of e-books will not be covered by the right of distribution pursuant to the InfoSoc Directive, ECJ AG says
In his opinion on a new case concerning (again) the interpretation of Directive no. 2001/29/EC, Advocate General Szpunar advised that the online supply of e-books by downloading for permanent use is not covered by the distribution right, but constitutes a communication to the public.

On September 10, 2019, Advocate General Maciej Szpunar (“AG”) delivered his opinion in case C-263/18[1] (“Opinion”), as referred by the District Court of the Hague to the European Court of Justice (“CJEU”).

The main proceedings concern a Dutch company, Tom Kabinet Internet BV, which operates an online platform selling second-hand e-books to its members (“Tom Kabinet”). Tom Kabinet was first sued (unsuccessfully) by two Dutch publishers’ associations before the District Court and the Court of Appeal of Amsterdam. Later, the case was brought before the District Court of the Hague, which decided to stay the proceedings and refer the case to the CJEU for a preliminary ruling on the interpretation of the distribution rights and their exhaustion within the meaning of Article 4 of Directive no. 2001/29/EC[2] (“InfoSoc Directive”).

In a nutshell, the referring Court asked the CJEU whether the supply of protected works by means of the downloading of digital copies should be qualified as distribution, within the meaning of Article 4 of the InfoSoc Directive, with the effect that the relevant right would be exhausted by the original act carried out with the author’s consent.

In his Opinion, the AG analyzed the objective, wording and context of the legislative provisions at stake, as well as the relevant case law of the CJEU on similar matters[3]. As pointed out by the AG, based on the fact that the “EU legislature’s clear intention [is] that downloading should be covered by the right of communication to the public”, and that the scope of the distribution rights is limited to acts of transfer of ownership of a copy, “the supply of e-books by downloading online for permanent use is not covered by the distribution rights within the meaning of Article 4 [of the InfoSoc Directive], but is covered by the right of communication to the public within the meaning of Article 3 para. 1 of that directive[4]. AG therefore concluded that the rule of exhaustion of the distribution rights set forth in Article 4(2) of the InfoSoc Directive cannot operate with respect to works supplied by downloading for permanent use.

At the time of writing, the CJEU has not yet issued its decision on the case.

 

[1] Request for a preliminary ruling from the Rechtbank Den Haag (Netherlands) lodged on April 16, 2018 — Nederlands Uitgeversverbond, Groep Algemene Uitgevers v Tom Kabinet Internet BV, Tom Kabinet Holding BV, Tom Kabinet Uitgeverij BV.

[2] 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.

[3] In particular, the AG recalled the Case C‑128/11 of July 3, 2012 – UsedSoft GmbH v Oracle International Corp.; Case C-466/12 of February 13, 2014 – Nils Svensson and Others v Retriever Sverige AB; and Case C-348/13 of October 21, 2014 – BestWater International GmbH v Michael Mebes and Stefan Potsch.

[4] Opinion of Advocate General Szpunar delivered on 10 September 2019, in Case C‑263/18.

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