Resale of e-books 'unlawful' under EU law, suggests Szpunar

The resale of e-books on sites such as Tom Kabinet are "unlawful under EU law", Advocate General Maciej Szpunar has suggested, following a request for a preliminary ruling from the Rechtbank Den Haag (District Court, The Hague, Netherlands).

At the Court of Justice of the European Union (CJEU) yesterday (10th September), Szpunar found copyright exhaustion does not apply to e-books under EU law. The opinion is not binding, but could be followed by CJEU when it reaches its conclusion.

Publishers Association c.e.o. Stephen Lotinga said: “We welcome the Advocate General’s opinion in this case, which supports the rights of publishers and authors in the digital realm. This is an incredibly important case for publishing and the wider creative industries as it goes to the heart of how we operate our digital businesses. We are reassured that the Advocate General has recognised that digital copies do not deteriorate and that sales of second-hand copies would directly compete with original works. We now urge the Court of Justice of the European Union to pay close attention to this opinion, act swiftly and rule accordingly.”

Federation of European Publishers president Rudy Vanschoonbeek said: "In a world that makes it easy to re-sell a digital service it would not be sustainable for publishers and their authors to develop and maintain new means of accessing that type of content. Resale of an e-book is very different from resale of a printed book, since digital copies can numerously and potentially be sold to an indefinite number of users, whereas a physical copy can only be sold and read by one person at a time, and is subject to a degree of deterioration. If the court were to interpret current EU law according to Advocate-General’s opinion, i.e. that exhaustion does not apply digital services, this will encourage the development of new business models."

Zoey Forbes, technology, media and entertainment associate at Harbottle and Lewis, said the opinion will be welcomed by rightsholders of digital works protected by copyright. 

She added: “The opinion also acknowledges the risks to rightsholders that may arise from a second-hand market for ebooks, including cannibalisation of the primary market and the increased risk of piracy. Although the opinion is not binding on the CJEU, it is rare for the CJEU to take a radically different stance, and we therefore expect the CJEU to reach a similar conclusion in its upcoming judgment.

“However, it is worth noting that Advocate General recognises that the digitisation of content has upset the traditional balance between the rights of the user and the rightsholders and that there may be practical and policy reasons in favour of the resale of digital works, although the law and other arguments are to the contrary. Much like the US courts in the case of Capitol Records v Redigi, he therefore firmly places any changes to the law in the hands of the EU legislature rather than the judiciary.”