BREAKING: Dutch court refers questions to CJEU on e-lending and digital exhaustion

Fancy a trip to Luxembourg?
First of all, a kat-warning: this is not an April's Fool joke, also because how could you ever make copyright-related jokes? ;)

A few months ago this very blog reported that a new reference to the Court of Justice of the European Union (CJEU) could be on its way from copyright-loving Member States The Netherlands, regarding topical issues such as e-lending and ... digital exhaustion [yay! You can check out the latest Kat-installment in this apparently never-ending story here].

Although on holiday, invariably helpful and enthusiastic - yet anonymous - Katfriend who nonetheless tweets as 'Pacta Sunt Servanda' (@TreatyNotifier) has just alerted this Kat that the questions that the Court of First Instance of The Hague (Rechtbank Den Haag) is sending to Luxembourg for some well-deserved CJEU treatment have now been finalised [and are available in Dutch here].

They are [translation provided by Pacta]:

      1. Should Articles 1(1), 2(1b) and 6(1) of Directive 2006/115 [the Rental and Lending Rights Directive] be interpreted in such a way, that "Lending" should also encompass: making available to the public - through a publicly accessible institution for use without direct or indirect commercial or economic advantage- copyright-protected novels [Dutch: romans], short stories [verhalenbundels], bibliographies, travelogues, children's books and children's literature [jeugdliteratuur] [Pacta-NOTE: the judge did not expect a special treatment of these classes of ebooks, but it is those ebooks (and not a wider definition) that form part of the dispute, so the judge did not see a reason for having a more general question]
-      through the placement of a copy in digital form (reproduction A) on the server of the institution (= library) and enabling that a copy can reproduce that copy on his own computer (reproduction B)
-      where this copy (reproduction B) is not usable anymore after a limited time
-      where other users can not download the copy (reproduction A) during that limited time

.... was not said in Allposters
If so, is it required for the use of the public library exception, that the work has entered into circulation through a first sale (...) of that copy in the Union by the rightholder or with his consent? ['Pacta''s comment is: the question focuses on whether sale is a requirement as at the moment ebooks are formally never truly sold, but they are rented for an indefinite duration; and whether exhaustion of the distribution right is a requirement for the application of the lending exception. The judge is quite clear that the answer should be in the negative as there is no reason to assume that exhaustion is a requirement for application of lending under the Rental and Lending Rights Directive]

3. If the answer to Question 2 is in the affirmative is it relevant whether Reproduction A was obtained from a legal source? 

      4. If the answer to Question 2 is in the affirmative, is obtaining an ebook through a library download so that the rental is for an indefinite period, akin to a sale so that the right of distribution is exhausted? [so it would seem that the CJEU did not address this point uncontroversially in Allpostershere ...]
BREAKING: Dutch court refers questions to CJEU on e-lending and digital exhaustion BREAKING: Dutch court refers questions to CJEU on e-lending and digital exhaustion Reviewed by Eleonora Rosati on Wednesday, April 01, 2015 Rating: 5


  1. Can clearly be decided by reference to existing case law. No new issue here.Expect most putting in observations to say that.

  2. Anonymous at 11:20. Could you expand on how those should be answered? Especially the first question seems not have been given any explicit treatment in CJEU case law.

    The referring judge only mentions as related case law the Usedsoft decision, which isn't about lending; as well as "Vereniging van Educatieve en Wetenschappelijke Auteurs" (VEWA, C271/10), where in point 23 in the language of the case -Dutch- the term "zaken" is used, which could be interpreted as physical goods)...

  3. In reply to Treaty Notifier.Explicit treatment in previous case law is not the principle. Deduction from previous case law is...

  4. How do you characterise what the library in C117/13 was doing then?

  5. -Anonymous at 1136 (=anonymous at 1020?): I know, but as said, I would not know which case law it should then be deduced from. Could you help us out with a link to the case law and your interpretation of how the questions should be answered?

    -Anonymous at 11:38 (=anonymous at 1136?). the libraries were asking for a client/subscriber based remuneration; but this was a fully analogue case, with no reference to whether lending should emcompass the one-user-one-copy lending of electronic items. The only hint to ebooks could be a passing mention of a term which could be interpreted as analogue only: "zaken"; but that does not make things very much clearer to me...


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