Does the InfoSoc Directive envisage digital exhaustion? Questions in the Tom Kabinet CJEU reference finalized (at last)
In a 2017 decision the Rechtbank Den Haag (Court of The Hague)
held that Tom Kabinet is not liable for unauthorized acts of communication to
the public under the Dutch equivalent of Article 3(1) of the InfoSoc Directive.
However, that court deemed it unclear whether the defendant could invoke the digital exhaustion of the
right of distribution in relation to its e-book business.
Now, The IPKat has
learned (again, thanks to @TreatyNotifier) that
- at last - the questions for the CJEU have been finalized.
Here they are [WARNING:
the translation from Dutch is mine … thanks to Google Translate]:
1. Is Article 4(1) of the InfoSoc
Directive to be interpreted as meaning that "any form of distribution to
the public of the original of a work or a copy thereof by sale or
otherwise" includes the making available remotely by means of
downloading for use for an unlimited period of time of an e-book (ie a digital
copy of a copyright book) by paying a price that the copyright holder receives
as remuneration and which corresponds to the economic value of that copy of the
work?
2. If Question 1 is to be answered in the
affirmative, is the right of distribution in relation to the original or copies
of a work as referred to in Article 4(2) of the InfoSoc Directive exhausted in
the Union with the first sale or other transfer of the original or a copy thereof, including the
remote downloading of an e-book (ie a digital copy of a copyright book) for use
for an unlimited period by paying a price which the copyright holder receives
as remuneration and which corresponds to the economic value of that copy of a
work, within the Union by the rightholder or with his permission?
3. Is Article 2 of the InfoSoc Directive
to be interpreted as meaning that any transfer between subsequent purchasers of
a legally obtained copy in respect of which the right of distribution has been
exhausted is tantamount to consenting to the acts of reproduction referred to
therein, in so far as those acts of reproduction are necessary for the
lawful use of that copy and, if so, what conditions would apply?
4. Is Article 5 of the InfoSoc Directive
to be interpreted as meaning that the copyright owner cannot oppose the acts of reproduction in relation to a lawfully obtained copy in respect of transfers
between subsequent purchasers and in relation to which the right of distribution has
been exhausted and, if so, what conditions would apply?
We now have to wait for
the assignment of a number to this case and publication of details (as well as
an official translation of the questions) on the Curia website: stay tuned!
Does the InfoSoc Directive envisage digital exhaustion? Questions in the Tom Kabinet CJEU reference finalized (at last)
Reviewed by Eleonora Rosati
on
Thursday, March 29, 2018
Rating:
Reviewed by Eleonora Rosati
on
Thursday, March 29, 2018
Rating:
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Posts
The case has been finally registered: Nederlands Uitgeversverbond and Groep Algemene Uitgevers
ReplyDeleteCase C-263/18
Well, I'm interested in this case but actually I don't think that Tom Kabinet will win. Concerning the recital 28 and 29 of Copyright directive, one could not argue that the right of distribution has exhausted when he/she is referring to an intangible item/good/ebooks . Ignoring that, whether Tom Kabinet has infringed the copy right owned by NUV/GAU still remains to be argued. All above is my personal words.
ReplyDeleteBut I have a QUESTION that what will the Directive on Copyright in the Digital Single Market (if it is affirmed and published ) influence this case, or will it cause any different?