Part 1 of this post discussed the legislative history and significance of the CJEU referral in Tom Kabinet. This part will illustrate content and implications of the three classificatory dichotomies, explain why EU copyright law needs digital exhaustion, and propose interpretative solutions for the CJEU to help with this, leveraging the occasion offered by the…

After years of contradictory decisions and obiter dicta, on April 2, 2019 the CJEU held the first hearing in Tom Kabinet (C-263/18), a Dutch referral that promises to solve once and for good the question of admissibility of digital exhaustion under Art. 4(2) InfoSoc. Against the legislative silence, Tom Kabinet puts the Court at a…

The European Parliament has just approved the new text of the copyright directive, which will now go to the Council for a final vote on April 15th, 2019. This legislation not only modifies the copyright framework as set out in the Information Society Directive (Directive 2001/29/EC) but it will also modify the liability regime as…

On Valentine’s Day, the Higher Regional Court of Vienna (docket no 4 R 119/18a) issued a judgment on a complaint by the Austrian broadcasting company Puls 4 against YouTube, predating the much-discussed Article 17 (formerly known as Article 13) of the Copyright Directive. The petition requested aimed to prevent YouTube from making available videos containing…

Introduction: digital exhaustion One of the main limitations to the right of distribution in European copyright law is the principle or rule of exhaustion. This rule, known as the first sale doctrine in US law, means that the right of distribution is exhausted by the first sale or other transfer of ownership of a copy…

Part 1 of this post explained the background to the development of shadow libraries and their growth in recent years. This post will analyse the nature of the works downloaded and discuss the implications of shadow libraries for the future of scholarly publishing. What is being downloaded? Over the 4.5 month period in 2014/15, 760,868…