On 19 December the Grand Chamber of the Court of Justice of the EU ruled on the question referred for a preliminary ruling in the context of a dispute in the Netherlands concerning the provision of online services consisting of a virtual marketplace for “second-hand” e-books, with regard to the interpretation of Articles 2, 4(1) and (2) and 5 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.

Background of the case.

The applicants are associations whose purpose is to protect the common interests of Dutch publishers. The defendant runs a website where ‘second-hand’ e-books are sold. In July 2014 a copyright infringement action was filed but it was dismissed in first instance. Subsequently, the defendant changed the policy of the service: second-hand e-books which had been purchased or donated were offered to users in exchange of money payment. Afterwards it can be downloaded and the watermark of the company is added to confirm that it has been obtained lawfully obtained.

A new complaint is then filed by these associations on the grounds that the digital books are being communicated to the public without authorisation. In that context, the national court (the Rechtbank Den Haag – Court of First Instance, The Hague) raised the following questions for a preliminary ruling:

  1. Is Article 4(1) of [Directive 2001/29] to be interpreted as meaning that “any form of distribution to the public by sale or otherwise of the original of their works or copies thereof” as referred to therein includes the making available remotely by downloading, for use for an unlimited period, of e-books (being digital copies of books protected by copyright) at a price by means of which the copyright holder receives remuneration equivalent to the economic value of the work belonging to him?
  2. If question 1 is to be answered in the affirmative, is the distribution right with regard to the original or copies of a work as referred to in Article 4(2) of [Directive 2001/29] exhausted in the European Union, when the first sale or other transfer of that material, which includes the making available remotely by downloading, for use for an unlimited period, of e-books (being digital copies of books protected by copyright) at a price by means of which the copyright holder receives remuneration equivalent to the economic value of the work belonging to him, takes place in the European Union through the right holder or with his consent?
  3. Is Article 2 of [Directive 2001/29] to be interpreted as meaning that a transfer between successive acquirers of a lawfully acquired copy in respect of which the distribution right has been exhausted constitutes consent to the acts of reproduction referred to therein, in so far as those acts of reproduction are necessary for the lawful use of that copy and, if so, which conditions apply?
  4. Is Article 5 of [Directive 2001/29] to be interpreted as meaning that the copyright holder may no longer oppose the acts of reproduction necessary for a transfer between successive acquirers of the lawfully acquired copy in respect of which the distribution right has been exhausted and, if so, which conditions apply?’

The Court replies only to the first question as follows, on the understanding that the remaining ones are thus settled:

The question refers to whether the supply of a download of an electronic book for permanent use constitutes an act of distribution or whether that supply falls within the scope and meaning of communication to the public. This differentiation is relevant in order to determine whether the supply will be subject to the rule of exhaustion of the right of distribution or whether it is modality of the right of public communication.

After several considerations, the Court states that the provision to the public by downloading an electronic book for permanent use falls within the concept of “communication to the public” and, more specifically, of “making [the authors’] works available to the public in such a way that members of the public may access them from a place and at a time individually chosen by them”, within the meaning of Article 3(1) 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

Judgment of the European Court (Grand Chamber) of 19 December 2019.