The Court of Justice of the European Union (“CJEU”) has held that a company making available second-hand e-books on its website to members of its reading club engages in a “communication to the public” that infringes the author’s rights under the EU Directive 2001/29 on copyrights (the “Copyright Directive”). The CJEU held that the copyright rule of exhaustion, under which the copyright holder exhausts its right to control downstream uses of copyright-protected works, applies only in the context of the right to distribute tangible objects, such as printed books, where the owner of the printed book can freely dispose of the printed book.

The CJEU explained that unlike tangible objects, e-books do not deteriorate with use and are therefore perfect substitutes for new copies. These perfect copies cannot be made available to other users, by way of ‘communication to the public’, without the approval of the copyright owner of the e-book. 

The court further explained that a ‘communication to the public’ occurs where the protected work is communicated using different means from those previously used, or that access is granted to a new public that was not already taken into account by the copyright holders when they authorized the initial communication to the public. 

CLICK HERE to read the CJEU’s judgment.