According to the Court of Justice of the European Union, the sale of second-hand electronic books through the Internet constitutes a communication to the public subordinated to the author's authorization.
When we buy a paper book, we become the owners of the book, understood as an object and, therefore, we can transmit it freely without the authorization of the author of the work. In summary, the possibility of transferring this previous reasoning to e-books is the nuclear issue that the Court of Justice of the European Union (CJEU) has recently faced in its ruling of December 19th, 2019 in the Tom Kabinet case (C-263/18).
In this judgment, the CJEU, following the conclusions of the General Advocate Szpunar, has stated that the fact of providing the public by downloading an e-book for permanent use, is included within the concept of “public communication” in the terms of the Directive 2001/29 on copyright. Therefore, the resale of an e-book does not constitute a mere sale of an object, such as a paper book, but involves a public communication of the work required for it, as a basic and fundamental requirement, the author's consent as stipulated, among others, in article 17 of the Intellectual Property Law.
The defendant entity Tom Kabinet, an online reading club, claimed that the resale of the e-books does not constitute a communication to the public, but that its activity is framed within the distribution right subject to the exhaustion rule, which occurs after putting the work into the market for the first time by its author, without it being able to subsequently prevent the movement of the product in the market.
On the other hand, the CJEU maintained in line with recitals 28, 29 and Article 3.3 of Directive 2001/29, given that any interested person can become a member of the reading club, there being no technical limitations on the platform that ensure that only one copy of the work can be downloaded for a limited period of time and by a restricted number of users, making the e-books available in this way implies communication to the public, without qualifying this activity as distribution. To a greater extent, the CJEU understands that the delivery of a book in material support and the supply of e-books are not comparable from an economic and functional point of view. Thus, it is stated: “intangible digital copies, unlike books on material support, do not deteriorate with use, so that second-hand copies are the perfect substitute for new copies (...) so that the second-hand parallel market can affect the interest that holders have in obtaining adequate remuneration for their works much more significantly than the second-hand market of tangible objects.”
For this reason, the European Court has ruled in this case that the sale of second-hand e-books through the Internet constitutes a communication to the public subject to the author's authorization. However, one might wonder what the decision of the CJEU would have been in the event that the platform of the defendant entity had adequate measures that restricted the availability of the works subject to resale both from a temporary point of view and the number of users who can access them. In particular, if we take into account the threshold “de minimis” to integrate the concept of “public” present in the jurisprudence of the CJEU that implies discarding the public communication consideration of making the work available to a too-small number of people.
Consequently, as in the vast majority of legal disputes, it is necessary to keep in mind the factual background of the case. In this way, it will not be the same to make the work available to an unlimited number of people unlimitedly than to do it in a restricted and controlled way to a small number of users and for a limited time. However, and in any case, the CJEU makes it clear that, at least in the field of intellectual property, paper books and electronic books are not the same things.