The opinion,
delivered last week in Tom Kabinet (C-263/18), a Dutch referral, will be
welcomed by rightsholders of digital works protected by copyright, including music,
films and games as well as e-books, Zoey Forbes, associate in technology, media
and entertainment at Harbottle & Lewis, said.
The case arose
when Tom Kabinet, an online second hand e-book seller, was sued by the Dutch
Publishers Association and the General Publishers Group in a dispute over the
extent of distribution rights and the rule of exhaustion. The case centres on
when copyright of digital property can be said to be exhausted―is it after the
first sale, or at a later stage?
Forbes said:
‘The Opinion also acknowledges the risks to rightsholders that may arise from a
second-hand market for e-books, including cannibalisation of the primary market
and the increased risk of piracy.
‘Although the
Opinion is not binding on the Court of Justice of the European Union (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 the 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.’
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