Exhaustion of copyright does not apply to e-books in EU

[drjenkins]

Exhaustion of copyright is pretty much what is known in the US as the doctrine of first sale. Only the copyright holder may sell a given book to the first buyer, but that buyer is then free to sell that copy of the book to anyone.


The EU's highest court has ruled that this does not apply to used e-books. There is some concern that this may be applied as a precedent against the resale of other digital media like games and movies.

Sale of second-hand e-books infringes copyright, rules CJEU

[pwalker8]

First sale doctrine was explicitly litigated in the US over Blockbuster buying movies on video tapes and then renting them, so that won't be a problem. Congress explicitly made music and computer program rentals without the copyright holder's permission illegal. Right now, the legal question marks for first sake doctrine in the US that is being used is licensing and bypassing DRM.

[drjenkins]

This ruling won't affect the US, or the UK shortly, but the EU is still a large market.

[Quoth]

Originally Posted by drjenkins

The EU's highest court has ruled that this does not apply to used e-books. There is some concern that this may be applied as a precedent against the resale of other digital media like games and movies.
Sale of second-hand e-books infringes copyright, rules CJEU

The problem with file only media, like an eBook, is proof that you have passed on the item and not kept a copy. DVDs, CDs, printed books, BluRay disks, cassettes, VHS and even some Software packages can be resold because they are physical items. There is no physical purchase at all with an ebook and it's trivial to copy, which I suspect is the reason for this ruling.

On looking at the report:

The court referred to the World Intellectual Property Organisation (WIPO) Copyright Treaty, which underpins the InfoSoc Directive. According to the court, that treaty holds that rights exhaustion should be “reserved for the distribution of tangible objects,

So that *IS* the underlying problem.

I expect this will soon be applied everywhere and is inevitable. It's better than "stronger" DRM that prevents transfer, because DRM takes away rights of the user buying the item legitimately and also Copyright eventually expires (different to exhaustion) allowing free copies but DRM doesn't and failure or deliberate closure of servers for DRM can result in locking out valid users or blocking use when the work should be in the Public Domain.

This ruling has almost zero effect to most purchasers of eBooks as this "claimed to be legal" trade was a tiny proportion. Also how could S/H resellers prove that original owner had destroyed all copies?

[rkomar]

I haven't been following this for a few years now, but this was probably why e-books were taxed as software rather than books in the EU a while ago. I vaguely remember people wanting that tax scheme to be changed, but I can't remember if it ever was or not. If not, then this treatment of e-books does have a substantial effect on purchasers in the EU.

[fjtorres]

Originally Posted by drjenkins

This ruling won't affect the US, or the UK shortly, but the EU is still a large market.

Maybe not the UK but in the US a growing number of judges have taken to invoking internationap (mostly EU and UK) law when they don't like existing US precedents. It goes all the way to the SCOTUS.

https://www.cato.org/blog/use-misuse...-law-us-courts

http://opiniojuris.org/2010/08/02/ju...-adjudication/

And, of course, both EU and Canadian courts have issued rulings intended to apply beyond their borders into the US.

So foreign rulings like these bear watching. They might be coming to a court near you.

[pwalker8]

Originally Posted by fjtorres

Maybe not the UK but in the US a growing number of judges have taken to invoking internationap (mostly EU and UK) law when they don't like existing US precedents. It goes all the way to the SCOTUS.

https://www.cato.org/blog/use-misuse...-law-us-courts

http://opiniojuris.org/2010/08/02/ju...-adjudication/

And, of course, both EU and Canadian courts have issued rulings intended to apply beyond their borders into the US.

So foreign rulings like these bear watching. They might be coming to a court near you.

The flip side is that the current direction of US courts seems to repudiate the internationalist bend of some judges over the years.