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Magazine of the Chartered Institute of Journalists

Exhaustion of rights in ebooks

After reading that not-very-sexy heading, you’re probably already lost. But stay with me for a while, especially if you have ever written a book, or even considered writing one. That general ignorance applied to many astute members of the British Copyright Council. In fact it warranted a special presentation at the March meeting of the full BCC.

There’s a big difference between a hard copy of a book and its intangible or virtual electronic equivalent. Buy a book and you have something solid in your hands. You’ve paid a publisher, wholesaler or retailer for it, and part of that payment goes to the author, illustrator or designer in recognition of their creativity and copyright. That copy is yours to read, display, lend or use as a door-stopper, as you wish. Crucially, if someone else wants a copy of that book and can’t or won’t deprive you of yours, they need to buy another copy.

What you can’t do with the book you bought is to make a digital or printed copy and then sell, loan or hire out that copy. That infringes not only copyright but also a complementary but less often mentioned right, the ‘making available’ right. This is especially applicable to copies accessed by download, like ebooks, where every copy is absolutely identical with the master.

These statements seem pretty obvious and uncontroversial to me and to virtually every expert in copyright and related rights. However, none of this prevented case C-263/18 of the District Court of the Hague (the Tom Kabinet case) being referred to the European Union’s Court of Justice. The claim being tested is whether a digital copy is a (tangible) ‘object’ and whether first sale of that object exhausts the right to control resale of the object. Regrettably, the reference apparently did not mention that digital copies are specifically excluded from the ‘object’ definition in all relevant legislation, nor did it draw attention to the ‘making available’ right.

Nonetheless, the case has been sitting around at the CJEU for about a year and no definitive decision has yet been handed down, so all this is mere interpretation. In the meantime, ‘legal opinions’ proliferate.

I have no time or space to mention here the perhaps more astonishing US case of the 12,000 and counting (as yet anonymous) US public libraries who, encouraged and abetted by Amazon, are making thousands of e-books available free of charge to anyone, which they say is legal providing each library buys a few licences and does not ‘sub-licence’ more than that number of licences at any one time. They claim that this is analogous to the long-established distribution of printed books, but every purchaser (or ‘sub-licensor’) of a digital ebook receives a brand-new, perfect copy, whilst the print version wears out and, by convention, is generally replaced after 30 or 40 loans.

But why is all this happening? My theory, unsupported by any other BCC member, is that someone has spotted a gap in the market, to be used in making them the next billionaire or adding more billions to the megazillions of an existing worldbeater. According to my idea, the cases I’ve mentioned above are mere distractions from the coming book-based equivalent of Spotify and the like, whereby you borrow a digital copy of virtually any book in existence (in or out of print or copyright) free of charge for as long as you like, but receive with it a targeted and ever-changing array of personalised advertising. If you decide to go into this yourself, just send my one per cent of turnover to the new company I’m setting up in the Cayman Islands.

Ken Brookes, CIoJ Copyright Representative