A-G Szpunar: supply of e-books is not covered by the distribution right but by the right of communication to the public

Opinion of advocate-general Szpunar regarding NUV/Tom Kabinet  (C‑263/18).

The referring court has asked the Court four questions concerning whether the supply of e-books by downloading online for permanent use is covered by the right of distribution within the meaning of Article 4 of Directive 2001/29, whether that right is exhausted by such a supply made with the author’s consent, and whether the acts of reproduction necessary for the subsequent transfer of an e-book acquired in that way are lawful.

Furthermore, a number of the parties which have lodged observations in the present case, are of the view that the scope of the questions should be widened to include whether the acts in question are covered by the right of communication to the public, as provided for in Article 3 of Directive 2001/29. According to the A-G, these questions must all be analysed together, because they form inseparable parts of a single complex question: must the supply to users of protected works by downloading be considered to be covered by the distribution right, with the effect that that right is exhausted by the original supply made with the author’s consent? In particular, the classification of those acts as coming within the right of communication to the public precludes their coming within the right of distribution and vice versa.

The A-G concludes that arguments, of both a legal and a teleological nature, are in favour of recognition of the rule of exhaustion of the distribution right with respect to works supplied by downloading for permanent use. In particular, the permanent possession by the user of a copy of such a work shows the similarity of that mode of supply with the distribution of tangible copies. However, the A-G is of the view that, as EU law now stands, the arguments to the contrary should prevail.

For that reason, the A-G proposes that the following answer shall be given to the questions for a preliminary ruling:

“Article 3(1) and Article 4 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as meaning that the supply of e-books by downloading online for permanent use is not covered by the distribution right within the meaning of Article 4 of that directive but is covered by the right of communication to the public within the meaning of Article 3(1) of that directive.”

Read the opinion here.