On 10 September 2019, AG Szpunar delivered his opinion in Nederlands Uitgeversverbond and Groep Algemene Uitgevers v. Tom Kabinet (C-263/18), concerning the lawfulness of Tom Kabinet’s sale of second-hand e-books. The referring court asked the CJEU whether the supply of e-books by downloading for permanent use is covered by the right of distribution under Article…

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…

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…

Introduction Cloud Services are often used for communicating, distributing and reproducing digital content, since IP based devices are nowadays a common means for exploiting such content and the IP connection between client devices and servers is made simpler with the use of virtualized resources in Cloud. We noted in a previous post (see here) that…

In its judgment of 19 December 2018 in Criminal proceedings against Imran Syed (C-572/17) the Court of Justice of the European Union (CJEU) rules that the storage of copyright infringing items constitutes infringement of the distribution right if identical items are also held at the actual place of sale and those items are intended to…

The right of distribution is the least controversial of the three exclusive rights contained in the Information Society Directive (InfoSoc Directive). Yet, every now and then the Court of Justice of the European Union (CJEU) is asked to re-examine its scope. With far less interpretative imagination compared with the right of communication to the public,…

As the jurisprudence of the European Court of Justice and ongoing discussions in the EU legislature illustrate, the economic rights granted to right holders under EU copyright law – the rights of reproduction, communication to the public and distribution – have become increasingly unpredictable. While the right of reproduction already covers almost every direct or…

Placing a copyright-infringing armchair in a hotel lobby does not qualify as “distribution”, but displaying a photo of it on the hotel’s website does qualify as “making available” under copyright law.  This is the outcome of a recent Austrian Supreme Court judgment, notable for its reversal of the decision of that same court in the…

Lawful acquirers of computer programs cannot resell back-up copies of the programs. This is according to the Court of Justice of the European Union (CJEU) in case C-166/15 (Ranks/Vasiļevičs v. Finanšu un ekonomisko noziegumu izmeklēšanas prokoratūra/Microsoft Corp). The circumstances of the case were that two persons sold, on an online marketplace, used copies of computer…