E-books never get tired

According to the case law of the European Court of Justice (CJEU) and the Federal Court of Justice (BGH) where a software is purchased, the copyrights on this software are “exhausted”, so that the purchaser is allowed to resell this copy of the software or this license for further use if and when this first purchaser no longer uses and deletes the software or license (“UsedSoft-cases”).

Now the CJEU has commented on the question of how e-books should be treated in this context in its decision of 19 December 2019. Many had suspected that the European Court of Justice would apply its case law to e-books because, ultimately, they are also software.

However, as sometimes happens, the CJEU was good for a surprise.

Specifically, the decision dealt with the copyright admissibility of an online marketplace for “used” e-books. The provider of this online marketplace sells e-books there to registered users that were previously purchased by official distributors or private users. Read e-books should then be sold back to the operator of the marketplace, with the operator requiring the respective seller to delete his own digital copy. The requirements of the UsedSoft jurisdiction are thus met.

The CJEU has now decided that making an e-book available for permanent use by downloading it falls under the concept of “communication to the public” and not under the concept of “distribution to the public”. This is important because the right of communication to the public is not subject to so-called exhaustion according to the relevant directive (Art. 3 (3) of the InfoSoc Directive). The European Court of Justice has thus determined that the rights to an e-book are not exhausted by the first-time making available of the book. This means that e-books cannot be resold used against the will of the rights holder.

If one puts aside the legal subtleties, the decision of the CJEU not only states that “normal” software and e-books are to be treated differently, but also that the provision of a classic book and the provision of an e-book are not comparable in economic and functional terms. A digital copy – unlike books – is not deteriorated by use. A “used” copy of the e-book is therefore ultimately in no way inferior to a “new” copy. Thus, conventional books and e-books could not be treated equally for valuation reasons and it was therefore unacceptable that e-books could be resold in the same way as used books.

Since – in contrast to used software – their resale can be prohibited by the general terms and conditions of e-books, caution is required and the respective contract and business conditions of the providers must be read carefully.