PRESS RELEASE - FEP’s reaction to Advocate-General’s Opinion in case C-263/18 (Tom Kabinet)

The Federation of European Publishers takes note of the Opinion of Advocate-General Maciej Szpunar delivered today in the case C-263/18.

The Opinion remains in line with the very clear formulations of the EU copyright acquis and the Court of Justice jurisprudence, notably in rulings in case C-419/13 Art Allposters and C-174/15 Vereneging Openbare Bibliotheken & Stichting Leenrecht.

In relation to digital services, the second-hand market is largely indistinguishable from the first-hand market. There is actually no second-hand market in the digital world but a single market of identical files, whose consumption modes would therefore be fundamentally questioned.

Mr Rudy Vanschoonbeek, the President of the Federation of European Publishers, said, in a world that makes it easy to re-sell a digital service it would not be sustainable for publishers and their authors to develop and maintain new means of accessing that type of content. Resale of an e-book is very different from resale of a printed book, since digital copies can numerously and potentially be sold to an indefinite number of users, whereas a physical copy can only be sold and read by one person at a time, and is subject to a degree of deterioration.
If the Court were to interpret current EU law according to Advocate-General’s Opinion, i.e. that exhaustion does not apply digital services, this will encourage the development of new business models.

In the US, the Supreme Court has denied the petition of ReDIGI (an online marketplace for digital services i.e.: digital music, eBooks, games, apps, software) to review the Second Circuit’s refusal to apply the First Sale Doctrine to the transfer of digital music files. In European legal terms, this means that the US Courts have confirmed that there can be no exhaustion for digital services. In a globalised market, the rules should be identical.

In Europe, as generally elsewhere in the world, e-books are still a nascent market. They represent 18% of the revenues in the UK, by far the most developed market for e-books in Europe, some 4.5% of the trade book market in Germany, 5% in Italy, etc.
FEP represents 29 national associations of publishers of books and learned journals in the European Union and the Economic Area. It is therefore the voice of European publishers, a leading cultural industry with a global turnover of some 38 billion euros and a production of half a million new books per year.

For more information, please contact Anne Bergman-Tahon, FEP Director - or 0032477-33-65-76