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)
• Pages: 200-214

2020

Liliia Oprysk

200

2

Secondary communication under the EU

copyright

acquis

after

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.

de/urn:nbn:de:0009-dppl-v3-en8.

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

public.

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

1

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: <https://dspace.ut.ee/handle/10062/66906>.

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.