Does the InfoSoc Directive envisage digital exhaustion? Questions in the Tom Kabinet CJEU reference finalized (at last)

Several months ago this blog reported that the longstanding litigation in The Netherlands against second-hand ebook e-book trader Tom Kabinet would result in a reference for a preliminary ruling to the Court of Justice of the European Union (CJEU) asking whether the InfoSoc Directive allows 'digital exhaustion'.

In a 2017 decision the Rechtbank Den Haag (Court of The Hague) held that Tom Kabinet is not liable for unauthorized acts of communication to the public under the Dutch equivalent of Article 3(1) of the InfoSoc Directive. However, that court deemed it unclear whether the defendant could invoke the digital exhaustion of the right of distribution in relation to its e-book business.

Now, The IPKat has learned (again, thanks to @TreatyNotifier) that - at last - the questions for the CJEU have been finalized.

Here they are [WARNING: the translation from Dutch is mine … thanks to Google Translate]:

1. Is Article 4(1) of the InfoSoc Directive to be interpreted as meaning that "any form of distribution to the public of the original of a work or a copy thereof by sale or otherwise" includes the making available remotely by means of downloading for use for an unlimited period of time of an e-book (ie a digital copy of a copyright book) by paying a price that the copyright holder receives as remuneration and which corresponds to the economic value of that copy of the work?

2. If Question 1 is to be answered in the affirmative, is the right of distribution in relation to the original or copies of a work as referred to in Article 4(2) of the InfoSoc Directive exhausted in the Union with the first sale or other transfer of the original or a copy thereof, including the remote downloading of an e-book (ie a digital copy of a copyright book) for use for an unlimited period by paying a price which the copyright holder receives as remuneration and which corresponds to the economic value of that copy of a work, within the Union by the rightholder or with his permission?

3. Is Article 2 of the InfoSoc Directive to be interpreted as meaning that any transfer between subsequent purchasers of a legally obtained copy in respect of which the right of distribution has been exhausted is tantamount to consenting to the acts of reproduction referred to therein, in so far as those acts of reproduction are necessary for the lawful use of that copy and, if so, what conditions would apply?

4. Is Article 5 of the InfoSoc Directive to be interpreted as meaning that the copyright owner cannot oppose the acts of reproduction in relation to a lawfully obtained copy in respect of transfers between subsequent purchasers and in relation to which the right of distribution has been exhausted and, if so, what conditions would apply?

We now have to wait for the assignment of a number to this case and publication of details (as well as an official translation of the questions) on the Curia website: stay tuned!
[Originally published on The IPKat on 29 March 2018]

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