Second hand e-books infringe copyright in Europe

We generally never think twice about whether buying a second hand book is illegal or not. Why is that? The short answer is that we just assume that it’s fine - everyone does it, there is a well-developed trade in second-hand books – why would it be an issue?

Of course, it isn’t an issue and the legal explanation to why not is known as “the doctrine of exhaustion of rights”. From the moment physical copy of a book is sold (“distributed”), the rights of the author and publisher to sue for copyright infringement are held to be “exhausted”.

But, what about e-books and digital texts?

Intuitively, you might think that there should be no difference between the rules for physical books and digital books. But, according to the Court of Justice of the European Union, this is not the case. It has ruled that the copyright in digital works is not exhausted on first sale.

Its explanation was that they are very different things to physical works:

…dematerialised 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, so that a parallel second-hand market would be likely to affect the interests of the copyright holders in obtaining appropriate reward for their works much more than the market for second-hand tangible objects…

Unlike a dusty and battered second hand book, a “second hand” e-book remains the same as a “first hand” e-book. A second hand e-book retailer needs to put almost no effort into selling something that is identical in every way to the original. They effectively make the same work available to new customers within the same primary market. As such, the work’s copyright is not exhausted and making it available in this way is an infringement.

The ruling is bad new for resellers like Tom Kabinet, the Dutch second hand e-book seller in the case. However, it provides a useful insight into how the CJEU will treat digital works in the future. The trick is not to be distracted by labels like “e-book”, EU courts will look at the nature of the work alleged to be infringed, and the economic reality of the situation instead.

If you want to read more the judgement is here.

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