The background:
Nederlands Uitgeversverbond (infra NUV) and Groep Algemene Uitgeversle (infra GAV), two associations representing dutch copyright owners, filed a lawsuit before the Court of First Instance in The Hague seeking a ban on the Dutch company ‚Tom Kabinet‘ about reproducing and making available several ebooks to members affiliated to its book reading club on a special website of that company.
That request was based on the alleged copyright infringement by Tom Kabinet itself, on the ground that the offer of second-hand ebooks via an online platform to members of a reading club constituted in fact an act of communication to the public which was unauthorised and, therefore, in full breach of the publishers‘ copyright.

CJEU Decision:
By judgement Tom Kabinet C-263/18 of December 19th 2019, the Court of Justice of the European Union held that the provision of an ebook cannot be covered by the right of ‚distribution to the public‘ under Article 4(1) of InfoSoc Directive 2001/29. On the contrary, that activity must be regarded as covered by the concept of ‚communication to the public‘ in Article 3(1) of that directive. Hence the inapplicability of the principle of exhaustion, which applies only to the right of distribution and that is excluded in relation to the right of communication to the public.
In support of its ruling, the Court points out that the European legislative authority, on the basis of the Copyright Treaty of the World Intellectual Property Organisation (WIPO) and on the basis of preparatory work for the InfoSoc directive itself, has made it clear that the principle of exhaustion applies only to the distribution of tangible works, such as books printed on a material medium, to the exclusion altogether of works in electronic form. Ebooks, being dematerialised, do not suffer any deterioration as a result of prolonged use and can therefore be considered as real copies equal to new ones on the secondary market.

The meaning of “communication to the public”:
In its ruling, the Court of Justice then paid attention to the meaning of „communication to the public“, pointing out that it should be understood in a broad sense, since it concerns all communications to the public not present at the place where they originate and, therefore, any transmission or retransmission of a work. The Court went on to emphasise that the mere preparation for downloading a work through a special website constitutes a genuine act of communication, without it being necessary for the individual user to proceed with the actual downloading of the work. From a substantive point of view, it is reiterated that the act in question must be included in the option of ‚making the work available to the public‘, as it is also clear from the explanatory memorandum on the proposal for the InfoSoc Directive 2001/29.
In addition, the Court stated that through the platform managed by Tom Kabinet there were several users who could simultaneously or successively access the same work. This is further in support of the fact that the disclosure made must be classified as effective communication to the public.
In conclusion, the Court then pointed out that the making available of a book in electronic format (so-called ebook) is normally accompanied by a license to use it which authorizes the user who downloaded the work to read it.
Consequently, it is implicit to believe that the type of communication carried out by the Tom Kabinet company, addressed indiscriminately to all users registered on a special sharing platform, is addressed to a completely new audience, not included among the one originally considered by copyright holders, as expressly required by the notion of „communication to the public“ outlined by the Court of Justice of the European Union.

Paolo Rovera