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…

Back in 2016, the CJEU examined the question of whether backup copies of software could be resold, following the exhaustion of the right of distribution pursuant to the judgment in C-128/11 UsedSoft. In C-166/15 Ranks (Microsoft), the Court ruled that, although the initial acquirer of software can resell that copy and his licence, he cannot…

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…

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…

This post was first published on the Kluwer Trademark Blog In a judgement of April 2018, the Regional Court of Hamburg has ruled on the use of original advertising material by non-authorized dealers and on how trademark law can bypass copyright law (308 O 231/16). The plaintiff manufactures saddle bags and other high quality cycling…

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…

The Court of Appeal ruled that the resale of used e-books by Tom Kabinet was permitted based on the CJEU’s UsedSoft ruling, although that case dealt with the sale of second-hand software. Nevertheless, the Court agreed with NUV that Tom Kabinet, as an internet intermediary, facilitates the resale of illegal content by the absence of…