[Editor's note] Like most countries and regions in the world, The rulings of the Court of Justice of the European Union have important guiding significance and predictive value for understanding the legal norms of the European Union. Esabaril (ELZABURU) At the beginning of each year, typical cases of the Court of Justice of the European Union in the previous year are summarized and published, And a brief review of each case, In order to help customers and partners to understand the EU intellectual property norms. Given the importance of Chinese customers and partners, We try to publish the Chinese version of typical cases on a weekly basis, It is convenient for Chinese partners to learn the latest information in a timely manner.

[background]

Nederlands Uitgeversverbond (Hereinafter referred to as "NUV" ) and Groep Algemene Uitgevers (Hereinafter referred to as "GAU" ) It's two publishers' rights associations in Denmark; Tom Kabinet It's a book, E-book and database publishing operation, 2014 Since the year of operation online "Book club" website, And sell it on the site "second-hand" e-book. NUV and GAU Sue Tom Kabinet Infringe the intellectual property rights of its members, Request the court to rule against the latter's infringement of services. But the injunction request was rejected by the court. 　　

2015 years 6 Lunar day, Tom Kabinet Revamp its ebook sales service, create "Tom Leesclub" . Club users pay a fee, You can download what the club offers "second-hand" e-book——In part by Tom Kabinet purchase, Part donated free of charge by club users. The way users donate ebooks is, Provide a download address for the book, And stated that the donor did not keep copies of the book. after, Tom Kabinet Upload the book to the retailer's website, Add your own digital watermark, To show that it was a legally obtained copy. 　　

Aim at Tom Kabinet The above behavior, NUV and GAU Refile suit, Consider the latter "Offer and copy ebooks" Behavioral composition of "Unauthorized dissemination to the public" , Infringement of the copyright of its members, Ask the court to bar the latter from disputing service. 　　

The Hague Court of First Instance held that the conduct in question did not constitute communication to the public, However, it was considered necessary to clarify whether it constituted an issue (distribution) behavior, And whether the exhaustion of rights principle can be applied? Therefore, The Court of Admissibility requested the European Court of Justice to make preliminary rulings on four issues including the concept of issue, At the heart of it all is this " "Directive of the European Parliament and of the Council on the harmonization of partial provisions on copyright and related rights in the information society (The first 2001/29/EC No) " (Hereinafter referred to as "European Union regulation 2001/29/EC Number instruction" ) The first 4 (1) Whether the bar contains the following conditions: Make e-books available to the public for an indefinite period of time for a fee through remote downloading (Digital copy of a copyrighted work) , Book copyright owners receive compensation equal to the economic value of their work? " 　　

[conclusion] 　　

European court of justice ruling, The sale of used e-books by the defendant in this case, It does not constitute issuance, It constitutes interactive on-demand (interactive on-demand transmission) Form the act of communicating to the public. (In accordance with the "European Union regulation 2001/29/EC Number instruction" The first 25 Natural segment, The features of the interactive on-demand format are: The public is free to choose when and where to access copyright works. ——Translator's note) 　　

specifically, The European Court of Justice held in response to a question from the Court of Admissibility, Interactive on-demand belongs to "Communicate to the public" An act of a work, Therefore, There is no specific association with an unspecified number of the public available at different times, The act of accessing a protected work from a publicly accessible website in different locations, Belong to "European Union regulation 2001/29/EC Number instruction" The first 3 (1) The act of communicating to the public as specified in the article, And clarify that communication here does not include "Issue physical copy (physical copies) " behavior, Because physical copies circulating as tangible goods fall under the category of distribution rights. 　　

Finally, The European Court of Justice stated that, Any of the following conditions shall constitute communication to the public: The use of specific technical means to distribute the work is different from that used previously; or, To reach a new audience that is different from the previous audience. Considering that in this case, E-books usually come with a user license, So that users can download the electronic book and use their own computer to read, Therefore it should be recognized Tom Kabinet The controversy communication behavior is oriented towards the group, It is not the audience group considered by the copyright owner in the process of licensing the initial dissemination of the work, That is, composition (In the behavioral sense of communication to the public) New public group. 　　

[comment] 　　

Conclusions of the European Court of Justice—— "Make e-books available to the public for permanent use by downloading them, Belong to 'Communicate to the public' Conceptual category of, To be more specific, Belong to "European Union regulation 2001/29/EC Number instruction" The first 3 (1) Normative behavior" ——Be of great significance, It further clarifies "Communicate to the public" with "Digital domain distribution" Conceptual difference between. The issue began in the European Court of Justice 2012 years UsedSoft case (The first C-128/11 No) Reference in adjudication, But because the goods at issue in the case are computer programs, So its ruling applies to "Directive of the European Parliament and of the Council on the legal protection of computer programs (The first 2009/24/EC No) " Stipulation of. 　　

compile: Liu Dan, Esabarry Legal Counsel　　source: Esabaril (ELZABURU) Intellectual property rights