A Second Market for “Used” e-Books – CJEU Will Decide

Ever since the European Court of Justice (CJEU) in its highly regarded UsedSoft ruling declared the resale of “used” software admissible (dated 3 July 2012, C-128/11), the discussion has persistently centered around the question whether the idea of the so-called exhaustion, upon which UsedSoft is essentially based, could or should be extended to other digital content – such as e-books. The principle of exhaustion states that the resale of works or copies thereof within the European Economic Area (EEA) is permitted without the consent of the rights holder, provided that the work or a copy was first placed on the market within the EEA with the consent of the rights holder. However, in copyright law, this principle is basically linked to the distribution of physical objects and not to the downloading of data packages. As a result, the physical book has been treated differently from its electronic counterpart until today. The CJEU must now clarify in a current preliminary proceeding whether this will continue to be the case in the future (C-263/18 – Tom Kabinet).

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