On 10 September, the Advocate General of the Court of Justice of the European Union (CJEU) issued an important opinion concerning the legality of reselling ebooks.

The case concerns a service operated by a Dutch company, Tom Kabinet, which enables its subscribers to exchange ebooks online. The question for the CJEU is whether this activity is permitted under a rule in EU copyright law which states that an author’s right to control distribution of their work is ‘exhausted’ once it has been legitimately sold with the EU.

The critical question before the court is whether it is possible to extend this principle to the online environment, thereby creating a concept of digital exhaustion of rights. In his opinion, the Advocate General notes that, when framing the distribution right, the World Intellectual Property Organization Copyright Treaty specifies that the exhaustion of the right applies only in the case of ‘tangible objects’, such as hard copies of books. He further observes that the European Copyright Directive (2001) makes clear that rights cannot be exhausted in the context of online services.

Furthermore, the Advocate General confirms that the reproduction right (the bedrock of copyright law), which is relevant to an online exchange for reselling ebooks as digital files will need to be copied as a function of such a service, is also a non-exhaustible right.

The situation whereby a single, ebook file could be endlessly recirculated without a copyright licence would clearly be detrimental to authors and publishers as well as any nascent PLR schemes incorporating elending. The Advocate General’s opinion is, therefore, a welcome and timely clarification of a specific principle of international copyright law and it is to be hoped that this view will be affirmed when the court provides its final ruling.