|The Tom Kabinet portal|
This Kat has learned from a Dutch Katfriend who wishes to remain anonymous but nonetheless tweets as 'Pacta sunt servanda' (@TreatyNotifier) that it is Court of First Instance of The Hague (Rechtbank Den Haag), not the the Court of Appeal, which has decided to refer the case. It has done so in the context of proceedings between the Dutch Association of Public Libraries (Vereniging van Openbare Bibliotheken) and Stichting Leenrecht (this a collection agency designated by the Dutch government for payments of lends, which it then redistributes to rights holders via a separate organisation named LIRA).
Although the questions have yet to be finalised [the parties have time until 1 October to make comments], so far they read as follows (in Dutch of course):
[can lending ebooks on a one-user-one-copy basis be regarded as lending under the Rental Directive? 'Pacta' explains that in its ruling the Rechtbank Den Haag said that lending can be interpreted as: i) the term in normal use (according to the judge: transferring temporarily the "beschikkingsmacht" (the power to do things with it) to someone) which would (again according to the judge) not apply to ebooks in this case, as one version would remain stored on the servers of the library; or ii) is defined by Article 2(1)(b) of the Rental Directive: making available for use (....), which is technique-independent (and thus would apply to ebooks)]
may not always
be appreciated at first
Upon launching the website, Tom Kabinet sent letters to publishers explaining the initiative and inviting them to support it. It is not completely surprising that they didn’t. Two organisations representing publishers (Nederlandse Uitgeversverbond and Groep Algemene Uitgevers) filed instead a “kort geding”, ie a legal action seeking a verdict on short notice based on what the likely judgement would be in a fully fledged court case. They sought an order that would require Tom to stop its service, amongst others because Tom could not guarantee that the seller would remove his/her own copy. They further indicated that storing the ebook was an act of reproduction action and a communication to the public; and that Tom was facilitating the distribution of illegal ebooks.
In its verdict on 21 July last the Rechtbank Amsterdam (Court of First Instance of Amsterdam) made a few interesting remarks: (1) there was no evidence of bad faith on the side of Tom Kabinet; (2) there was uncertainty surrounding the applicability of the principle of exhaustion and the Court did not feel like following certain German decisions [on which see further below]; (3) the judge declined to say which of the parties was “right” regarding the legality of Tom Kabinet's initiative in light of the existing legal uncertainty (specifically mentioning the potential questions in the public libraries case), and held instead that Tom maintained a defendable position that probably only in a fully fledged court case could be assessed.
There may be two further steps after a verdict of this kind. A “kort geding” can be appealed (spoed appel; accelerated appeal) which will result again in a “kort geding”-like session”. Both parties furthermore may start a fully fledged court case (a “bodemzaak”). The news is that last week the publishers indeed filed the accelerated appeal. No bodemzaak has been started yet, but the publishers keep this option open.
Now how will this action end up at the CJEU? Not at the spoedappel stage as that is too time-critical. But it may happen in the possible bodemzaak. Assuming the verdict will be upheld on spoedappel; I think the bodemzaak will be started by the publishers as the stakes are simply too high and the legal uncertainty too big. As this is a matter of principle and Dutch judges are quite keen on seeking guidance from the CJEU, I think it is highly likely there will be a reference for a preliminary ruling mainly regarding exhaustion, unless ... the answer to question 2 of the CJEU reference made last week in Vereniging van Openbare Bibliotheken (VOB) v Stichting Leenrecht answers the exhaustion question in such a way that it is also applicable here.
|But can you hide under an ebook?|
|Hereby we rule: |
no digital exhaustion
UPDATE: the post has been amended to reflect Barbara Stratton (@B_Stratton1) 's observations, for which Pacta and this Kat are grateful.