On 19 December 2019, the CJEU issued an awaited ruling in the case Tom Kabinet (C-263/18) (http://curia.europa.eu/juris/liste.jsf?num=C-263/18).
In this case, the Court indeed ruled that the distribution right (article 4.1 Directive 2001/29) did not apply to the online sale of digital content (in the case at hand, eBooks) by way of downloading.
The Court ruled that such online sale did rather fall into the ambit of the right of communication to the public (article 3.1 Directive 2001/29).
This means that no exhaustion of right can occur when the digital content is made available for the first time on the online market, by way of downloading, by or with the consent of the right holder (article 3.3 Directive 2001/29).
It follows that no further sale of a copy of the downloaded content can occur without the consent of the right holder.
That reasoning does not apply to computer programs, which still enjoy a different legal regime (directive 2009/24).
This is definitely no easy task to try and find a fair balance between apparently contradicting objectives such as achieving the digital single market and ensuring a high level of protection of copyright holders !
Brieuc Geuzaine (Junior Researcher, Teaching Assistant, Lawyer at Matray Matray & Hallet)