Opinion of the Advocate General — ECLI:EU:C:2019:697
Date: 2019-09-10
Language of the case: Dutch
Subject matter: Right of establishment;Intellectual, industrial and commercial property;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Request for a preliminary ruling from the Rechtbank Den Haag (Netherlands) lodged on 16 April 2018 — Nederlands Uitgeversverbond, Groep Algemene Uitgevers v Tom Kabinet Internet BV, Tom Kabinet Holding BV, Tom Kabinet Uitgeverij BV (Case C-263/18) Language of the case: Dutch Referring court Rechtbank Den Haag Parties to the main proceedings Applicants: Nederlands Uitgeversverbond, Groep Algemene Uitgevers Defendants: Tom Kabinet Internet BV, Tom Kabinet Holding BV, Tom Kabinet Uitgeverij BV Questions referred Is Article 4(1) of the Copyright Directive 1 to be construed as meaning that ‘any form of distribution to the public by sale or otherwise of the original of their works or copies thereof’ as referred to therein includes making available remotely by downloading, for use for an unlimited period, e-books (being digital copies of books protected by copyright) at a price by means of which the copyright holder receives remuneration equivalent to the economic value of the work belonging to him? If question 1 is to be answered in the affirmative, is the distribution right with regard to the original or copies of a work as referred to in Article 4(2) of the Copyright Directive exhausted in the Union, when the first sale or other transfer of that material, which includes making available remotely by downloading, for use for an unlimited period, e-books (being digital copies of books protected by copyright) at a price by means of which the copyright holder receives remuneration equivalent to the economic value of the work belonging to him, takes place in the Union through the rightholder or with his consent? Is Article 2 of the Copyright Directive to be construed as meaning that a transfer between successive acquirers of a lawfully acquired copy in respect of which the distribution right has been exhausted, constitutes consent to the acts of reproduction referred to therein, in so far as those acts of reproduction are necessary for the lawful use of that copy and, if so, which conditions apply? Is Article 5 of the Copyright Directive to be construed as meaning that the copyright holder may no longer oppose the acts of reproduction necessary for a transfer between successive acquirers of the lawfully acquired copy in respect of which the distribution right has been exhausted and, if so, which conditions apply? ____________ 1 Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10).