The long-awaited judgment of the Court of Justice of EU (“ECJ”) on the conditions for the sale of e-books to the public was finally issued on the 19th of December 2019.

Due to the technological developments that have brought new forms of usage of copyrighted works, a number of questions have arisen concerning the sale and availability of e-books to the public. The ECJ devoted its attention to one of these issues in case C-236/18.

Distribution to the public or communication to the public?

The ECJ has given an interpretation of European law in this matter in the case where the company, Tom Kabinet, began to offer online services including a virtual market of „second-hand“ e-books.

The key question in this case concerned distinguishing the delivery of an electronic book to a third person for permanent use by downloading it from a webpage as a „communication to the public“⁽¹⁾ or a „distribution to the public “⁽²⁾. Despite these terms appearing to be similar, they are not.

At the beginning of this note, we emphasized that if a book is in its physical form, the book may be resold, donated or transferred without requiring the author´s consent as the author´s right to grant a consent to further distribution of this book has been exhausted on its first sale. This case falls under the so-called „distribution to the public“ and the abovementioned rule of exhaustion of rights applies to it. Therefore, the author has no right to control the further sale of this object.

The issue at hand involved the question of further handling with the book through an electronic form. During the ECJ proceedings, the ECJ assessed the legal question whether the e-book can be distributed to the public, which links the above-mentioned rule of exhaustion of rights, or not.

After the legal consideration, the ECJ finally concluded that e-books are not distributed to the public but communicated to the public, whereas the ECJ specified the download of the e-book as „on-demand interactive transmission“, which is part of „communication to the public“ and is also described as a new form of usage of intellectual property⁽³⁾. According to the ECJ, the distribution of intangible works such as e-books cannot be assessed as distribution to the public. Therefore, the exhaustion of the right of the author to grant consent with further distribution of the book in its physical form is not applied to the downloaded e-book. Delivery of the e-book to the public for permanent use by downloading it from a webpage is considered to be a „communication to the public“ for which the author´s consent is required. According to the ECJ, the delivery of a book on a tangible medium and in the electronic form is not from the economic and functional point of view equivalent. This is because intangible digital copies are not depreciated out by use, unlike books on a tangible medium, so the used copies are the perfect substitute for new copies and their replacement does not require additional effort and cost. For this reason, according to the ECJ, the electronic book market may have a more significant impact on the right of authors to receive adequate remuneration for their works and thus, make the supply of these works to the public subject to their consent.

An electronic book is not a computer program

At the same time, the ECJ has emphasized that the e-book is not a computer program and therefore is not covered by the exceptions applicable to the sale of a computer program. Even if a computer program (e.g. allowing reading of the book) could be part of an electronic book, the ECJ stated that it has only an additional character.

What is in the conclusion?

If you supply electronic books to the public for its permanent use by downloading from a webpage, you need the consent of the book ´s author for such communication of it to the public, otherwise the electronic book author´s intellectual property will be violated by unauthorized public communication of his work.

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(1) According to Art. 3 par. 1 of Directive 2001/29 / EC.

(2) According to Art. 4 par. 1 of Directive 2001/29 / EC.

(3) The term also covers the case where several unrelated persons who are members of the public may, from different places and at different times, have individual access to a publicly accessible website.