LUXEMBOURG (CN) – E-books are not physical objects and therefore cannot be resold in Europe without the consent of the author, the European Court of Justice held Thursday.
“Digital copies, unlike books on a material medium, do not deteriorate with use, and used copies are therefore perfect substitutes for new copies. In addition, exchanging such copies requires neither additional effort nor additional cost,” the 13-judge panel of the Luxembourg-based ECJ said in the ruling.
Two groups representing Dutch publishers, Nederlands Uitgeversverbond and Groep Algemene Uitgevers, brought the case against Tom Kabinet, a Dutch marketplace for reselling e-books. The platform allows users to sell or purchase e-books from another user for a fee.
Under the European Union’s 2001 Information Society Directive – since replaced by this year’s Directive on Copyright in the Digital Single Market– paper books can be resold under the rule of copyright exhaustion. Once a tangible product is sold with permission from the owner of the intellectual property, it can be resold without needing further permission.
Lawyers for Tom Kabinet argued that the same principle should be applied to e-books.
Only a week after Tom Kabinet launched in 2014, the site was sued in the Netherlands by Nederlands Uitgeversverbond, which argued that the resale of e-books is illegal under copyright law.
The other publishing group in the dispute, Groep Algemene Uitgevers, applauded the EU high court’s decision Thursday.
“The decision is not only important for the book sector, but also for the music and film industry, because now also for music and film, downloaded copies may not be resold,” it said in a statement.
Since it was possible that copies of the e-books placed on the website could be read by multiple users simultaneously, the ECJ found that this constituted communication to the public, rather than distribution. Under the copyright directive, communications requires permission from the copyright holder, in the same way that someone who bought a copy of a movie cannot broadcast it publicly without permission.
One of the co-founders of Tom Kabinet expressed his disagreed with the court’s decision.
“The ruling is based on the incorrect assumption that we would not enforce the one copy, one user policy,” Marc Jellema said. Jellema insists that Tom Kabinet users are only be able to buy and sell individual copies of a work.
The District Court of The Hague requested the opinion from the ECJ and the case will now return there, where Jellema hopes the Dutch court will agree that, with proper precautions, his business model doesn’t violate copyright laws.