Netherlands courts apply UsedSoft case rule for reselling e-books
On January 20, the Netherlands Court of Appeal (Hof Amsterdam) made its preliminary decision on the case of Tom Kabinet . In this decision, the court determined whether the rule determined by the EU Court applied in the case of UsedSoft and in relation to electronic books. Without providing a final decision, the court determined that it considers it entirely acceptable that the exhaustion of rights, as defined in Art. 4 (2) of Directive 2001/29 / EC , also applies to intangible goods, such as electronic books.
Tom Kabinet is a Netherlands-based company that runs its “used” e-book business. The owner of the e-book can sell his copy of the book using the company's website. For the sale of used e-books, the owner, agreeing to the adoption of the standard terms of service, confirms that a copy of the book was acquired by him legally. He also states that he will delete his copy of the book. Tom Kabinet does not have any means to verify these claims of users for their truth, but the company has the right to add code to a downloadable copy of the book. This code allows you to track a specific copy, so Tom Kabinet can prevent attempts to sell the same copy of a book more than once. Tom Kabinet stated that the rule defined by the EU Court in the case of UsedSoft company extends its effect to e-books and thus the company's activities are completely legal.
The Netherlands Publishers Association has demanded that Tom Kabinet cease providing e-book reselling services. Publishers have stated that e-books cannot be resold because they are non-material goods. The court of first instance decided in favor of Tom Kabinet . However, the Court of Appeal ruled that the website should cease to function, since it allows you to sell copies that were obtained by illegal means. If Tom Kabinet implements a system in the service that will prevent such cases of offering to sell illegal copies of books, the service will be able to continue its business.
The court considered whether the rule of the UsedSoft case applies to this case. This is not the final decision on the issue, but it reflects a clear tendency to recognize that the rules of circulation of electronic books become similar to the rules of circulation of paper books (or software in the quoted case).
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The court ruled that it is not clear from the rules of the Case Soft whether the exhaustion of rights applies to electronic books. He ruled that the owner of the e-book gets the right to use a copy for an unlimited amount of time in exchange for payment of the cost, which reflects the economic value of the copy of the work - as in the UsedSoft case. On the other hand, the court determined that the paragraphs 28 and 29 stated in the declarative part of Directive 2001/29 / EC show that Article 4 (2) of the Directive applies only to tangible goods. Moreover, the court indicated that the special provision of Article 5 (1) of Directive 2009/24 / EC , authorizing the copying of a work for this purpose, is not inapplicable to copyright law in general.
These arguments against the possibility of exhaustion of rights do not oblige the court to prohibit the resale of electronic books. In addition, the EU Court took an economic approach from the UsedSoft case, drawing attention to the practical similarities of tangible and intangible goods, adding to this the fact that the right holder receives a certain reward when they are first sold. In light of this, the court took into account the possibility of carrying out activities by Tom Kabinet within the framework of European legislation. The court determined that Tom Kabinet should be forced to close its service within the framework of summary proceedings, since it is not at all clear how the court, when considering the case, essentially intended to oblige the company to cease its activities and refrain from it in the future. Thus, the court left unanswered the question of whether Tom Kabinet’s resale of electronic books is a legitimate activity within the framework of European legislation or not. Despite such uncertainty, the court did not consider it necessary to send the relevant questions to the EU Court, since he considered only the question of determining the legal norms of summary proceedings.
From a procedural point of view, the decision looks really fair. In summary proceedings, the court is not entitled to take measures that may go beyond the framework of summary proceedings. Taking this into account, the court expects that there will be exhaustion of rights with respect to objects in electronic form within the framework of the European Union, or at least it expects the EU Court to come to this conclusion. The court noted that the EU Court left unanswered the question to what extent and how the rule from the UsedSoft case could be applied in such a case. It was further stated that, assuming a unified position with other rules of the Court of the European Union, the resale of intangible goods is permitted.
In March 2013, a German court determined that Article 4 (2) of Directive 2001/29 / EC does not apply to downloads (Case No. 4 O 191/11, Landgericht (German Regional Court) Bielefeld, March 5, 2013). A German court ruled that the rule from the UsedSoft case is not applicable to electronic books, since they are not subject to Directive 2009/24 / EC. However, a Dutch court issued the opposite decision. Two opposite points of view of the two EU member states clearly demonstrate that the EU Court must still decide on this issue.
As a result, in relation to the Tom Kabinet company, it was decided to discontinue the activities of its service to assist in the resale of electronic books, since such assistance is an assistance to the sale of illegal copies. If the Company finds a way to prevent this phenomenon, it will be entitled to apply to the court for permission to resume its activities. Therefore, for the time being, according to Dutch law, article 4 (2) of Directive 2001/29 / EC also applies to electronic books.
Tom Kabinet is a Netherlands-based company that runs its “used” e-book business. The owner of the e-book can sell his copy of the book using the company's website. For the sale of used e-books, the owner, agreeing to the adoption of the standard terms of service, confirms that a copy of the book was acquired by him legally. He also states that he will delete his copy of the book. Tom Kabinet does not have any means to verify these claims of users for their truth, but the company has the right to add code to a downloadable copy of the book. This code allows you to track a specific copy, so Tom Kabinet can prevent attempts to sell the same copy of a book more than once. Tom Kabinet stated that the rule defined by the EU Court in the case of UsedSoft company extends its effect to e-books and thus the company's activities are completely legal.
The Netherlands Publishers Association has demanded that Tom Kabinet cease providing e-book reselling services. Publishers have stated that e-books cannot be resold because they are non-material goods. The court of first instance decided in favor of Tom Kabinet . However, the Court of Appeal ruled that the website should cease to function, since it allows you to sell copies that were obtained by illegal means. If Tom Kabinet implements a system in the service that will prevent such cases of offering to sell illegal copies of books, the service will be able to continue its business.
The court considered whether the rule of the UsedSoft case applies to this case. This is not the final decision on the issue, but it reflects a clear tendency to recognize that the rules of circulation of electronic books become similar to the rules of circulation of paper books (or software in the quoted case).
')
The court ruled that it is not clear from the rules of the Case Soft whether the exhaustion of rights applies to electronic books. He ruled that the owner of the e-book gets the right to use a copy for an unlimited amount of time in exchange for payment of the cost, which reflects the economic value of the copy of the work - as in the UsedSoft case. On the other hand, the court determined that the paragraphs 28 and 29 stated in the declarative part of Directive 2001/29 / EC show that Article 4 (2) of the Directive applies only to tangible goods. Moreover, the court indicated that the special provision of Article 5 (1) of Directive 2009/24 / EC , authorizing the copying of a work for this purpose, is not inapplicable to copyright law in general.
These arguments against the possibility of exhaustion of rights do not oblige the court to prohibit the resale of electronic books. In addition, the EU Court took an economic approach from the UsedSoft case, drawing attention to the practical similarities of tangible and intangible goods, adding to this the fact that the right holder receives a certain reward when they are first sold. In light of this, the court took into account the possibility of carrying out activities by Tom Kabinet within the framework of European legislation. The court determined that Tom Kabinet should be forced to close its service within the framework of summary proceedings, since it is not at all clear how the court, when considering the case, essentially intended to oblige the company to cease its activities and refrain from it in the future. Thus, the court left unanswered the question of whether Tom Kabinet’s resale of electronic books is a legitimate activity within the framework of European legislation or not. Despite such uncertainty, the court did not consider it necessary to send the relevant questions to the EU Court, since he considered only the question of determining the legal norms of summary proceedings.
From a procedural point of view, the decision looks really fair. In summary proceedings, the court is not entitled to take measures that may go beyond the framework of summary proceedings. Taking this into account, the court expects that there will be exhaustion of rights with respect to objects in electronic form within the framework of the European Union, or at least it expects the EU Court to come to this conclusion. The court noted that the EU Court left unanswered the question to what extent and how the rule from the UsedSoft case could be applied in such a case. It was further stated that, assuming a unified position with other rules of the Court of the European Union, the resale of intangible goods is permitted.
In March 2013, a German court determined that Article 4 (2) of Directive 2001/29 / EC does not apply to downloads (Case No. 4 O 191/11, Landgericht (German Regional Court) Bielefeld, March 5, 2013). A German court ruled that the rule from the UsedSoft case is not applicable to electronic books, since they are not subject to Directive 2009/24 / EC. However, a Dutch court issued the opposite decision. Two opposite points of view of the two EU member states clearly demonstrate that the EU Court must still decide on this issue.
As a result, in relation to the Tom Kabinet company, it was decided to discontinue the activities of its service to assist in the resale of electronic books, since such assistance is an assistance to the sale of illegal copies. If the Company finds a way to prevent this phenomenon, it will be entitled to apply to the court for permission to resume its activities. Therefore, for the time being, according to Dutch law, article 4 (2) of Directive 2001/29 / EC also applies to electronic books.
Source: https://habr.com/ru/post/376229/
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