The sale of second-hand e-books through a website constitutes a communication to the public that is subject to authorisation by the author
ECJ has ruled in the case refereed by Hague district court on case initiated by two publishers associations. Associations filed complaint in the court against a person who was making books available as e-books, without their permission. They complained that making second-hand books available for selling presents unauthorised communication to the public. On the other hand the person again who the complaint was initiated, stated that his activities fall within distribution right which under Directive 2001/29, is subject to a rule of exhaustion if the object concerned (in this instance, e-books) has been sold in the European Union by the right holder or with his consent. That rule would mean that, as a result of the sale of the e-books at issue, publishing organisations would no longer have the exclusive right to authorise or prohibit the distribution of those e-books to the public. However the court found that this exception and distribution right would not apply here due to the following. Court found that intention of this provision in Directive is to cover only tangible mediums. Court specifically stated that: “by contrast, the application of that rule of exhaustion to e-books would be likely to affect the interests of right-holders in obtaining appropriate reward much more than in the case of books on a material medium, since dematerialised digital copies of e-books do not deteriorate with use and are, therefore, perfect substitutes for new copies on any second-hand market.”. Finally, the court agreed with publishing organisations approach, that these actions indeed constitute communication to the public.