Thursday 19 December 2019

Tom Kabinet decision - no digital exhaustion of e-books

picture credit Gage Skidmore
and nods to the IPKats
Among its usual pre-Christmas deposit of multiple judgements, the CJEU has today handed down its decision in the long-awaited Tom Kabinet case (Case  C-263/18 Nederlands Uitgeversverbond and Groep Algemene Uitgevers v Tom Kabinet Internet BV and Others)

Both the press release and the judgement are now available in English.

As the press release succinctly explains: "The Court found that the supply by downloading, for permanent use, of an e-book is not covered by the right of ‘distribution to the public’ provided for by Article 4(1) of Directive 2001/29, but that it is covered by the right of ‘communication to the public’ provided for in Article 3(1) of that directive, in which case exhaustion is excluded under paragraph 3 of that article."

In doing so, the Court has followed the advice of Advocate General Szpunar, which met with the approval of our friends at IPKat in this commentary.

The Court has therefore correctly (in this author's view) determined that their is no exhaustion of online media (even if incidently bound up in a computer program that might be the subject of the Usedsoft decision).  If there is to be exhaustion of digital copies, then that must be a decision taken by the legislature after a full public policy evaluation, but with the move away from download-to-own towards more flexible business models (such as subscriptions), it seems unlikely that this will be seen as a policy priority.

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