Application and Limitations of the Principle of Digital Exhaustion in Europe: Tom Kabinet case and beyond

Abstract

On December 19, 2019, the European Union Court of Justice (CJEU) issued a preliminary decision in the case of Tom Kabinet in the Netherlands. It was a much- awaited decision in a situation where there were mixed judgments on the application of the digital exhaustion principle among the member states of the European Union. According to CJEU's preliminary decision, second-hand sales of e-books are not subject to European Union Computer Program Directive(Directive 2009/24/EC) but the Information Society Copyright Directive (Directive 2001/29/EC). It was concluded that the principle of exhaustion of rights does not apply to the provision of second- hand e-books by downloading as the Communication to the Public provisions of Article 3 in InfoSoc Directive. However, the standards presented in Tom Kabinet's judgment are still not clear enough to be applicable to all digital works online markets, and platforms are competing to develop new business models and technologies to avoid these standards. The legal, technical and economic debates are likely to continue. This article discusses the scope and limitations of the principle of exhaustion of rights proposed by CJEU by examining the judgment of Tom Kabinet, and the necessity of the principle of exhaustion of rights. Chapter Ⅱ examines the general principle of exhaustion of rights, and Chapter III examines the CJEU judgment on Tom Kabinet in detail. In Chapter Ⅳ, Ⅰ will examine the significance of Tom Kabinet's judgment and its impact on the application of the digital rights exhaustion principle in the future. In the conclusion, the necessity and role of the principle of exhaustion of rights in the Copyright Act is mentioned, and the necessity of expanding the application of the principle of exhaustion of digital rights along with the problems of CJEU's preliminary judgment is raised.