Secondary communication under the EU copyright acquis after Tom Kabinet: Between exhaustion and securing work's exploitation

Author:Liliia Oprysk
Position:Researcher in IT Law at the University of Tartu (Estonia)
Liliia Oprysk
Secondary communication under the EU
Tom Kabinet
Between exhaustion and securing work’s exploitation
by Liliia Oprysk*
© 2020 Liliia Oprysk
Everybody may disseminate this ar ticle by electronic m eans and make it available for downloa d under the terms and
conditions of the Digital P eer Publishing Licence (DPPL). A copy of the license text may be obta ined at http://nbn-resolving.
Recommended citation: Liliia Op rysk, Secondary communication under the EU cop yright acquis after Tom Kabinet, 11 (2020)
JIPITEC 200 par a 1.
Keywords: digital exhaustion; CJEU; communication to the public; new public; Tom Kabinet; UsedSoft
of e-books facilitated by the Tom Kabinet platform.
Whereas the judgment is of significance to the future
of the exhaustion principle under the acquis, this ar-
ticle focuses on its broader implications on secondary
communication. The article argues that the decision
is in line with the developments under the jurispru-
dence but is by no means a final say on the extent
of exclusive control over secondary communication
in the digital environment. Besides raising the ques-
tion of appropriate boundaries of the exclusive rights
and their role in the digital markets, the judgment in-
vites the legislator to revise the framework and re-
store the legal certainty in respect of the scope of ex-
clusive control over the work’s communication to the
Abstract: Since the adoption of the InfoSoc Di-
rective, the CJEU has been dealing with a variety of
questions on the interpretation of the broad right of
communication to the public. A substantial share of
the references for a preliminary ruling concerns sec-
ondary communication, which relies on communica-
tion initially authorised by the right holder. Despite
the seemingly clear language of Article 3(3) of the In-
foSoc Directive denying the exhaustion of commu-
nication right, the Court has occasionally exempted
secondary acts from the authorisation of the right
holder, relying on the arguments resembling the ex-
haustion principle of the right of distribution in re-
spect of the tangible copies of a work. In the recent
Tom Kabinet judgment, the CJEU denied the direct
application of the principle in the case of the resale
A. Introduction
The exclusive rights under copyright ought to
incentivise the creation and exploitation of works
by subjecting to right holder’s authorisation
acts, which are likely to interfere with a work’s
exploitation. The ever-widening catalogue of rights
has been constructed over decades in response to
technological developments.1 By all means the most
* Researcher in IT Law at the University of Tartu (Estonia).
The article builds upon the research leading to the doctoral
thesis on ”Reconciling the Material and Immaterial
Dissemination Rights in the Light of the Developments under
the EU Copyright Acquis” (Tartu University Press 2020),
signicant development of the last decades has been
available at: <>.
The research leading to this article was supported by the
Estonian Research Council grant PUT PRG 124.
1 See Ohly on the history of copyright as expanding exclusive
rights, Ansgar Ohly, ‘Economic Rights’ in Estelle Declaye
(ed), Research Handbook on the Future of EU Copyright (Edward
Elgar Publishing 2009) 238. Also, Synodinou on copyright
resisting new technologies and gradually expanding the
scope of the rights, Tatiana-Eleni Synodinou, ‘Copyright
Law: An Ancient History, a Contemporary Challenge’ in
Andrej Savin and Jan Trzaskowski (eds), Research Handbook
on EU Internet Law (Edward Elgar Publishing 2014) 81.

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