The supply to the public by downloading, for permanent use, of an e-book is covered by the concept of ‘communication to the public’: from the explanatory memorandum of the Directive follows that the intention was that any communication to the public of a work, other than the distribution of physical copies of the work, should be covered not by the concept of ‘distribution to the public’, but by that of ‘communication to the public’. Usedsoft judgment - in which the CJEU held that exhaustion does not extend only to copies of computer programs on a physical medium - does not apply to e-books: an e-book is not a computer program, unlike the Software Directive 2009, the EU legislature did not desire assimilation of tangible and intangible copies of works protected for the purposes of the relevant provisions of the Copyright in Information Society Directive, the sale of a computer program on a material medium and the sale of a computer program by downloading from the internet are similar from an economic point of view. However, the supply of a book on a material medium and the supply of an e-book cannot be considered equivalent from an economic and functional point of view, the fact that an e-book may form part of an e-book so as to enable it to be read cannot result in the application of software provisions. Subject to verification by rechtbank Den Haag (District Court, The Hague, Netherlands) must the making available of an e-book by Tom Kabinet be regarded as being communicated to a public: there is “communication” because the works are available to anyone who is registered and that these persons are being able to access the site from a place and at a time individually chosen by him or her, there is a “public” because the number of persons who may have access, at the same time or in succession, to the same work via that platform is substantial, there is a “new public” because a communication is made to a public that was not already taken into account by the copyright holders.
Court of Justice of the European Union Press Release: "The Court found that the supply by downloading, for permanent use, of an e-book is not covered by the right of ‘distribution to the public’ provided for by Article 4(1) of Directive 2001/29, but that it is covered by the right of ‘communication to the public’ provided for in Article 3(1) of that directive, in which case exhaustion is excluded under paragraph 3 of that article.
In support of that finding, the Court concluded in particular from the World Intellectual Property Organisation (WIPO) Copyright Treaty underlying that directive, and from the travaux préparatoires for the directive, that the EU legislature had intended that rule of exhaustion to be reserved for the distribution of tangible objects, such as books on a material medium. By contrast, the application of that rule of exhaustion to e-books would be likely to affect the interests of rightholders in obtaining appropriate reward much more than in the case of books on a material medium, since dematerialised digital copies of e-books do not deteriorate with use and are, therefore, perfect substitutes for new copies on any second-hand market.
As regards more specifically the concept of ‘communication to the public’, the Court indicated that this should be understood in a broad sense covering all communication to the public not present at the place where the communication originates and, thus, any such transmission or retransmission of a work to the public by wire or wireless means. That concept involves two cumulative criteria, namely an act of communication of a work and the communication of that work to a public.
As regards the first criterion, it is apparent from the explanatory memorandum in the proposal for Directive 2001/29 that ‘the critical act is the “making available of the work to the public”, thus the offering [of] a work on a publicly accessible site, which precedes the stage of its actual “on-demand transmission”’, and that ‘it is not relevant whether any person actually has retrieved it or not’. Thus, according to the Court, the making available of the works concerned to anyone who is registered with the reading club’s website must be considered a ‘communication’ of a work, irrespective of whether the person concerned avails himself or herself of that opportunity by actually retrieving the e-book from that website.
So far as concerns the second criterion, account should be taken not only of the number of persons able to access the same work at the same time, but also of how many of them may access it in succession. In the present case, according to the Court, the number of persons who may have access, at the same time or in succession, to the same work via the reading club’s platform is substantial. Consequently, subject to verification by the referring court taking into account all the relevant information, the work in question must be regarded as being communicated to a public.
The Court also held that, in order to be categorised as a communication to the public, a protected work must be communicated using specific technical means, different from those previously used or, failing that, to a new public, that is to say, to a public that was not already taken into account by the copyright holders when they authorised the initial communication of their work to the public. In the present case, since the making available of an e-book is generally accompanied by a user licence authorising the user who has downloaded the e-book concerned only to read that e-book from his or her own equipment, it must be held that a communication such as that effected by Tom Kabinet is made to a public that was not already taken into account by the copyright holders and, therefore, to a new public.
Read the press release here.