Tom Kabinet - The Aftermath : A critical evaluation of the CJEU's judgment and its market effects on digital distribution

Abstract: On the 19th of December 2019, the Court of Justice of the European Union ruled: "The supply to the public by downloading, for permanent use, of an e-book is covered by the concept of ‘communication to the public’ ..." This judgment ("Tom Kabinet judgment") solved a long debate whether "digital exhaustion" exists or not, in favour of the latter. This study is dedicated to the analysis of Tom Kabinet judgment and its effects. It analyses the judgment from several perspectives. Firstly it discusses the effects and the importance of Tom Kabinet judgment. Secondly, it analyzes the legal and non-legal arguments of the Court from a critical point of view and argues that a contrary non-contra legem solution existed. Thirdly, this study argues that in the long run, not only the end-users but also the rightholders can benefit from "digital exhaustion" and the existence of a digital secondary market. Therefore, a contrary solution of the case could be beneficial for everyone. As a proponent of "digital exhaustion," the present author offers several legislative policy considerations that are needed to give a new life to digital secondary markets.