Exhaustion, Distribution and Communication to the Public – The CJEU’s Decision C-263/18 – Tom Kabinet on E-Books and Beyond

Abstract

Abstract In its Tom Kabinet decision,****See the text of the decision in this issue of GRUR International at DOI: 10.1093/grurint/ikaa041. The author wishes to thank Aaron Stumpf, Stefan Scheuerer and Laura Valtere for fruitful discussions. the CJEU took a further step in dealing with digital facts under the InfoSoc Directive. This decision on the sale of ‘second-hand’ e-books through a website has set a number of things in motion: besides distinguishing between the distribution right and the right of communication to the public, the decision also affects the exhaustion doctrine and the coherence of European copyright law. In the past few years, discussions about the so-called ‘digital exhaustion’ and related issues have increased enormously. A few days before Christmas 2019, the CJEU published its long-awaited judgment in case C-263/18, also known as Tom Kabinet, in which it decided that the sale of ‘second-hand’ e-books through a website constitutes communication to the public and therefore requires the consent of the rightholder. This opinion gives insights into why the Tom Kabinet decision was so eagerly awaited, what exactly was decided and whether the CJEU’s decision could fulfil these great expectations.