Tom Kabinet – Toms Leesclub

April 5, 2018 / Blog, Case Comment

Rechtbank Den Haag – 28 March 2018

Last week the Dutch court amended the questions referred to the CJEU in the case opposing Nederlandse Uitgevers Verbond (Dutch publishers union) against Tom Kabinet.

Back in 2014, Tom Kabinet launched an online service consisting in a virtual marketplace dealing in second-hand e-books. The owner of the e-book could upload his copy to the Tom Kabinet website and offer it for sale to its visitors. The buyer could download the copy from the seller’s account against payment. The sold copy would then disappear from the seller’s account.

What is the scope of the Used Soft decision in this context and what is its significance regarding e-books?

It is unlawful for Tom Kabinet to offer an online service selling illegally downloaded e-books. Consequently, Tom Kabinet modified its services and became ‘Toms Leesclub’: Tom Kabinet is no longer an online intermediary. It acts like an e-bookseller in a restricted circle of members. Toms Leesclub sells to its members e-books coming either from Tom Kabinet (resale of e-books from retailers) either from members donating e-books.

Should an e-book be considered as a literary work falling under the Copyright Directive or is it a computer program in the meaning of the Software Directive?

Toms Leesclubs offering of e-books for downloading is no communication to the public (in the meaning of art. 3§1 Copyright Directive) as the act of selling on the website does not constitute an act of communication (no content is disclosed or made available) and its members can not be considered as a ‘public’ (the e-book on Toms Leesclub is only available to one member after payment).

Questions referred to the CJEU:

  • Act of reproduction?
  • Distribution right of e-books?
  • Exhaustion of distribution right?

We’ll keep you posted!

Nederlands Uitgeversbond v. Tom Kabinet Internet: Darts reference: nl-HA-ZA-15-827_20180328 or case name: Tom Kabinet

Referenced cases in the decision also available in our Copyright Database:
UsedSoft v. Oracle International Corp.: Darts reference: C-128_11_20120703 or case name: UsedSoft v. Oracle Ranks & Vasievis v. Microsoft Corp.: Darts reference: C-166_15_20161012 or case name: Ranks VOB v. Stichting Leenrecht: Darts reference: C-174_15_20161110 or case name: VOB v. Leenrecht Art & Allposters International v. Stichting Pictoright: Darts reference: C-419_13_20150122 or case name: Allposters

Featured Photo Credit: newsonline Attribution 2.0 Generic (CC BY 2.0)

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