Admissibility of the principle of exhaustion of the right of distribution in the European digital environment for e-books after the UsedSoft case and the Tom Kabinet case

Abstract: The debate of recognition or non-recognition of the digital exhaustion doctrine of the right of distribution for the copyrighted objects other than computer programs has been actively carrying on within the last decades in the EU. The explosive growth of the electronic versions of works and digitalization of the traditional copyrighted objects leads to new questions and challenges about its dissemination and usage by consumers. This work examines and investigates whether, and if so to what extent, the exhaustion principle of the right of distribution can apply to e-books in the online realm after two landmark cases: the UsedSoft case and the Tom Kabinet case. These two cases offer a different interpretation of the exhaustion doctrine in the digital field in relation to the different copyrighted objects, namely digital books and computer programs. It is argued that despite the CJEU’s decision in the Tom Kabinet case and lack of explicit clarity in the EU Directives devoted to the copyrighted objects, there is some room for digital exhaustion of the distribution right for the electronic books. This paper will also analyze the hypothesis that the peculiarities of the book market itself may potentially influence the recognition of the digital exhaustion principle from an economic standpoint. However, it is shown that the digital marketing of the works per se entailing multiple reproductions of the e-files as a technical step of the dissemination process creates new challenges on the exhaustion doctrine application. The paper provides a legal, economic and technological analysis of the EU exhaustion doctrine and its potential admissibility on the second-hand market of electronic books.