In one of its recent judgements the European Court of Justice (“ECJ”) has discussed some of the problems with the virtual market of “second-hand” e-books.
Sale of second-hand books
Every author is grated with the exclusive right to distribute his/her own work. This right is limited by „the doctrine of first sale“. This means that once a publisher or the author sells a copy of its book, it relinquishes its rights to sell that copy again and whoever bought it could sell it on his/her own. This doctrine applies to all types of copies. Therefore, the sale of “second-hand” e-books does not infringe the distribution right. However, due to their specifics the resale of e-books may affect some of the other copyrights. Once somebody acquires an e-book, he/she may provide access to it to indeterminate number of potential recipients who may download it numerous times.
The dispute in the main proceedings
Some of the Dutch associations for protection of publishers` interests argue that a company providing online services with “second-hand” e-books infringes the copyrights of publishers.
Few years prior these proceedings the company was prohibited from offering online services which allowed the sale of unlawfully downloaded e-books. The company has replaced these services with a reading club, within which it acts as an e-book trader. The reading club offers its members “second-hand” e-books which have been either purchased by the company or donated to it free of charge by members of the club. In the latter case, the company downloads the e-book from the retailer`s website and places its own digital watermark on it, which serves as a confirmation that it is a legally acquired copy.
Once the subscription fee for the club and the price of the book are paid the respective member may download the book and resell it to the owner of the reading club. By the end of 2015 the subscription fee ceased to be a requirement for the membership. Yet, in order to be able to acquire an e-book through the reading club the members have to own credits which they can obtain by providing the club with e-books.
According to the ECJ the respondent in the case infringes the right of communication to the public of works and more specifically the right of making available to the public.
The authors are entitled to the exclusive right to communicate their work to the public. In order to be categorized as a public, the communication shall be directed to indeterminate number of potential recipients. The ECJ also emphasizes that this right includes the transmission or retransmission of a work to the public not present at the place where the communication originates.
The concept of making available to the public forms part of the wider concept of “communication to the public”. In order to be classified as an act of making available to the public, the members of the public shall have to access the protected work from a place and at a time individually chosen by them, irrespective of whether they avail themselves of that opportunity.
The ECJ holds that the respondent infringes these two copyrights. Once the company acquires a book it does not simply sell the book to somebody else on the basis of the doctrine of first sale. On the contrary, the company makes the works concerned available to anyone who is interested in becoming a member of the reading club, thus the number of people who may have access to the book at the same time through the website is substantial. Moreover, they may access the e-books on the platform at any time and from any place individually chosen by them.