The Doctrine of Exhaustion in Limbo - Critical Remarks on the CJEU’s Tom Kabinet Ruling

Abstract

The Court of Justice of the European Union published its much awaited preliminary ruling in Case C-263/18, Nederlands Uitgeversverbond and Groep Algemene Uitgevers (the Tom Kabinet case) in December 2019. In its UsedSoft ruling (Case C-128/11), the CJEU accepted the exhaustion of distribution right for computer programs disseminated online. Following UsedSoft, the CJEU tried to refine its view on (digital) exhaustion, but many of its subsequent judgments (e.g. in Nintendo, Art & Allposters, Svensson, Stichting Leenrecht, Renckhoff) complicated the legal environment. The expectations were high in Tom Kabinet and the need for consistency was badly needed. The CJEU followed First Advocate General Maciej Szpunar’s restrictive approach and refused the digital exhaustion doctrine regarding e-books. The CJEU’s judgment not only created an inconsistency, but it further deepened uncertainties in this field. This paper aims to introduce the Tom Kabinet ruling, and discuss its direct and indirect consequences in copyright law.

Keywords: Tom Kabinet, CJEU, digital exhaustion, online resale of e-books, UsedSoft, comparative law, copyright law, European Union

JEL Classification: L00, K11, K19, K33, K39, O34