BREAKING: Dutch court refers questions to CJEU on e-lending and digital exhaustion

Fancy a trip to Luxembourg?

First of all, a kat-warning: this is not an April's Fool joke, also because how could you ever make copyright-related jokes? ;)

A few months ago this very blog reported that a new reference to the Court of Justice of the European Union (CJEU) could be on its way from copyright-loving Member States The Netherlands, regarding topical issues such as e-lending and ... digital exhaustion [yay! You can check out the latest Kat-installment in this apparently never-ending story here].

Although on holiday, invariably helpful and enthusiastic - yet anonymous - Katfriend who nonetheless tweets as 'Pacta Sunt Servanda' (@TreatyNotifier) has just alerted this Kat that the questions that the Court of First Instance of The Hague (Rechtbank Den Haag) is sending to Luxembourg for some well-deserved CJEU treatment have now been finalised [and are available in Dutch here].

They are [translation provided by Pacta]:

      1. Should Articles 1(1), 2(1b) and 6(1) of Directive 2006/115 [the Rental and Lending Rights Directive] be interpreted in such a way, that "Lending" should also encompass: making available to the public - through a publicly accessible institution for use without direct or indirect commercial or economic advantage- copyright-protected novels [Dutch: romans], short stories [verhalenbundels], bibliographies, travelogues, children's books and children's literature [jeugdliteratuur] [Pacta-NOTE: the judge did not expect a special treatment of these classes of ebooks, but it is those ebooks (and not a wider definition) that form part of the dispute, so the judge did not see a reason for having a more general question]

-      through the placement of a copy in digital form (reproduction A) on the server of the institution (= library) and enabling that a copy can reproduce that copy on his own computer (reproduction B)

-      where this copy (reproduction B) is not usable anymore after a limited time

-      where other users can not download the copy (reproduction A) during that limited time

     

.... was not said in Allposters

2. If so, is it required for the use of the public library exception, that the work has entered into circulation through a first sale (...) of that copy in the Union by the rightholder or with his consent? ['Pacta''s comment is: the question focuses on whether sale is a requirement as at the moment ebooks are formally never truly sold, but they are rented for an indefinite duration; and whether exhaustion of the distribution right is a requirement for the application of the lending exception. The judge is quite clear that the answer should be in the negative as there is no reason to assume that exhaustion is a requirement for application of lending under the Rental and Lending Rights Directive]

3. If the answer to Question 2 is in the affirmative is it relevant whether Reproduction A was obtained from a legal source? 

      4. If the answer to Question 2 is in the affirmative, is obtaining an ebook through a library download so that the rental is for an indefinite period, akin to a sale so that the right of distribution is exhausted? [so it would seem that the CJEU did not address this point uncontroversially in Allposters, here ...]