20. Feb 20

ECJ – No trade in secondhand e-books without consent of the author

Reselling secondhand e-books without the consent of the author is not allowed. That was the verdict of the European Court of Justice (ECJ) in a judgment from December 19, 2019 (Az.: C-263/18).

The ruling by the ECJ significantly strengthens the position of copyright holders. Unlike in the case of a printed book, the condition of a digital copy does not deteriorate with use. We at the commercial law firm MTR Rechtsanwälte can therefore report that, according to the ECJ, the rule on exhaustion is not applicable to e-books.

The underlying legal dispute was between Dutch publishers and a Dutch business offering members of a “reading club” it founded to publish and reproduce e-books. The publishers viewed this as an infringement of copyright in the e-books and alleged that reselling them constituted an unauthorized communication of books to the public.

The ECJ found in the publishers’ favor, putting a stop to the trade in “secondhand” e-books. The court held that the supply by downloading, for permanent use, of an e-book does not constitute a “distribution to the public” but rather a “communication to the public”, which is not subject to exhaustion.

The ECJ argued that applying the rule on exhaustion to e-books would have a much greater impact on the economic interests of rights holders than in the case of printed books, noting that the digital copies of e-books do not deteriorate with use and are thus the perfect replacement for new copies on a potential secondhand market.

The ECJ also clarified that the concept of “communication to the public” should be interpreted broadly. It went on to state that it is important to consider not only how many people have access to the same work at the same time, but also how many of them may access it in succession. The court concluded in the instant case that the number of people who may have access, at the same time or in succession, to the same e-book via the internet platform was substantial.

Lawyers with experience in the field of IP law can advise on issues relating to copyright law.

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