Prohibition on resale of e-books?

As a general rule, when one purchases goods, one acquires ownership and is free to dispose of them as one wishes. The Higher Regional Court (OLG) Hamburg had to deal with the question of whether the acquisition of a digital e-book also results in exhaustion of rights, or whether one merely acquires the right to read the book but is prohibited from reselling it.

The Federal Association of Consumer Advice Centres (VZBV) disputed with an online retailer the validity of its terms and conditions. The online retailer's terms and conditions contained a prohibition on resale for e-books and audiobooks sold on the platform, which the Association considered invalid. The VZBV was of the opinion that the acquisition of digital products such as e-books and audiobooks should be treated in the same way as the purchase of a printed book, in which the doctrine of exhaustion exhausts the author's exclusive right of distribution once the author has made copies of the work available on the European market. Furthermore, the Court of Justice of the European Union (EuGH) in its UsedSoft decision (we reported) regarding software affirmed an exhaustion of rights.

Decision of the court

In a previously unpublished decision of the Higher Regional Court (OLG) Hamburg of 24.03.2015 – Az.: 10 U 5/11 – the terms and conditions of the online retailer were upheld. The OLG decided that the doctrine of copyright exhaustion does not extend to digital, incorporeal works.

Whilst the doctrine of copyright exhaustion in the case of a conventional book has the effect that the purchaser may resell the acquired book at any time, this right may be effectively excluded by terms and conditions in the case of e-books and downloaded digital audiobooks.

The differential treatment of digital works such as audiobooks and e-books compared to software results from the corresponding European directives, which for audiobooks and e-books, in contrast to software, expressly refer only to physical distribution of works protected by copyright, which is not the case with the downloading of such works.

Conclusion

The feature of incorporeality of the work, which was decisive for the OLG Hamburg in this case, is present equally in software, e-books and audiobooks. Against this background, it is questionable whether a differential treatment of these digital works makes sense. This question has in the meantime been referred to the Court of Justice of the European Union (EuGH) for decision, so that the final word on this matter has not yet been spoken.