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…

On 12 December 2018 Advocate General (AG) Szpunar delivered his Opinion in Case C-476/17, Pelham. The case concerns the practice of sampling, i.e. the reproduction of minimal parts of a phonogram for the purposes of using it in another phonogram. As harmonized by EU law, the phonogram producer holds a related right of reproduction (Article…

This article will be forthcoming in the March 2019 issue of Communications of the ACM, a computing professionals journal. The editors of Communications of the ACM have given permission for it to be pre-published for the Kluwer Copyright Blog.         Should European press publishers be granted a new intellectual property (IP) right…

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…

At the end of 2017, HADOPI published an important survey on its activities for the period 2016-2017. It gives interesting and useful information on the graduated response created by the French legislator to fight online infringement directly at the source, by educating internet users and dissuading them from unlawfully downloading and/or sharing (and if possible…

On 14 September 2016, a proposal for a Directive on Copyright in the Digital Single Market saw the light of day. The proposal is part of the EU copyright reform package, which has as its objective to modernise EU Copyright rules for the digital age, thereby attaining the objectives set out earlier in the Digital…

Introduction On 30 June 2017, the German “Bundestag” adopted the “Act to Align Copyright Law with the Current Demands of the Knowledge-based Society” (“Urheberrechts-Wissensgesellschafts-Gesetz- UrhWissG”). It essentially reforms the terms of use of copyright protected works in the fields of education and research and will come into force on 1 March 2018. This new Act…