THE ECJ JUDGMENT ABOUT COPYRIGHT ON SECOND-HAND E-BOOKS

26 December 2019

In the judgment in Nederlands Uitgeversverbond and Groep Algemene Uitgevers (C-263/18)- delivered on 19 December 2019, the European Court of Justice (the ECJ) recognized that the sale of second-hand e-books online is a form of "communication to the public" which is a part of the copyright of the author.

The Court stated that the case of downloading an e-book for permanent use is not under the protection of the right of distribution to the public by Article 4(1) of Directive 2001/29 but covered by the right of communication to the public by Article 3(1) of that directive. Therefore, exhaustion would be eliminated under this situation

To support this decision, the Court explained the intentions of creating the rule of exhaustion according to the Copyright Treaty by the World Intellectual Property Organisation (WIPO). In this scope, the EU legislature's purpose by exhaustion was reserving the distribution of tangible subjects because there would be depreciation with use. On the other hand, in the case of e-books, there would be no difference between new copies and second-hand ones. 

The Court also analyzed the concept of the “communication to the public”, and affirmed the understanding of wider perception on this subject. Thus, the concept must include two cumulative criteria; (i) an act of communication of work, (ii) the communication of that work to a public.

About the first criterion, the essential part is the “making available of the work to the public”. Therefore, the act of making the work reachable publicly (like making the work available to the people who registered the reading club’s website) must be considered as a communication of work regardless to any person retrieved it or not.  

Concerning the second criterion, only the number of people who can access the same work at the same is not decisive, but also it must be taken into consideration how many people can access it consecutively. Since the number of the person who may have access, at the same time or consecutively, to the same work by the reading club’s website is significant, the Court stated the act of making the work available for the people who registered to the reading club’s website, is a form of communication to the public. 

Lastly, the Court pointed out the concept of communication to the public must include focusing on a different public which is not already taken into account by the copyright holders when they authorize the initial communication of their work to the public. In the case of e-books, since the general use of downloading an e-book is only read it from his or her equipment, the second use of the work would mean communication to the new public which is not already taken into account by the copyright holders.

You can find the text of the press release here.

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Kind regards,

Zumbul Attorneys-at-Law

info@zumbul.av.tr