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Audible and Tom Kabinet logos composite
Audiobook captions, resale of eBooks, copyright consultations in Brazil, Philippines, India and Ireland and copyright events coming up at London Book Fair. 

Digital distribution continues to be a key topic with recent developments in case law unfolding on either side of the Atlantic on audiobook captions and resale of eBooks. IPA continues to support its members in copyright law and policy consultations in Brazil, Philippines, India and Ireland. Read on for IPA copyright-related events at London Book Fair. 

While limited details are available, on 13 January 2020 a letter submitted to the Court in the Audible Captions case has confirmed that a settlement has been reached between Audible and the seven publishers in the suit filed by the Association of American Publishers in August 2019.

AAP member companies Chronicle Books, Hachette Book Group, HarperCollins Publishers, Macmillan Publishing Group, Penguin Random House, Scholastic, and Simon & Schuster were all named as plaintiffs on the suit which concerned a feature that would machine generate text from the audio so listeners could read along to the book. Audible refused to obtain a license to cover this additional feature, arguing that captions could be provided under the fair use exception. The publishers made clear that while they had licensed Audible to distribute audiobooks, an additional license is required for Audible to provide captions and offer a reading experience. More details about the settlement are expected to be available soon.   

On the possible resale of eBooks in the European Union’s market, the Court of Justice of the European Union delivered its judgement in the Tom Kabinet case on December 19, 2019. The case has been ongoing since the first ruling in 2014 in District Court of Amsterdam.

The case, brought by IPA member the Dutch Publishers Association (GAU) and the Dutch Media Federation centred on whether digital exhaustion applied to the distribution of eBooks. Publishers filed a lawsuit for copyright infringement against Tom Kabinet, an unlicensed second hand eBook retailer based in the Netherlands. The platform argued that no license was required to distribute ebooks because publishers’ rights would be exhausted with the first sale. The Court judgement is a resounding no as explained in the Court’s press release:

The Court found that the supply by downloading, for permanent use, of an e-book is not covered by the right of ‘distribution to the public’ provided for by Article 4(1) of Directive 2001/29, but that it is covered by the right of ‘communication to the public’ provided for in Article 3(1) of that directive, in which case exhaustion is excluded under paragraph 3 of that article. The press release adds that “ In support of that finding, the Court concluded in particular from the World Intellectual Property Organisation (WIPO) Copyright Treaty underlying that directive, and from the travaux préparatoires for the directive, that the EU legislature had intended that rule of exhaustion to be reserved for the distribution of tangible objects, such as books on a material medium. By contrast, the application of that rule of exhaustion to e-books would be likely to affect the interests of rightholders in obtaining appropriate reward much more than in the case of books on a material medium, since dematerialised digital copies of e-books do not deteriorate with use and are, therefore, perfect substitutes for new copies on any second-hand market.” The reference to the WIPO Copyright Treaty is valuable for jurisdictions outside of the European Union: while not being bound by EU case law, courts in third countries having acceded to the WIPO Copyright Treaty should reach similar conclusions.   

IPA has recently submitted responses to consultations in Brazil, the Philippines, Ireland and India.

In Brazil, the Government is expected to publish a copyright law review bill for public comments during the first semester of 2020, following a consultation on priorities that closed in September 2019. IPA’s submission aimed at supporting its Brazilian members SNEL and CBL in opposing a bill proposed in the Parliament in the meanwhile, which disregarded the upcoming copyright law review and is arguably not compatible with provisions in WIPO administered treaties to which Brazil announced its intention to accede to. On behalf of international publishers, IPA urged Brazilian parliament to maintain the integrity of exclusive rights, set out appropriate enforcement mechanisms and respect international provisions when setting out new exceptions and limitations.

The Intellectual Property Office of the Philippines published seven draft regulations and a new draft IP Code for consultation. IPA’s submission focused on providing comments to recommend compliance with provisions in international treaties administered by WIPO regarding a draft regulation to implement the Marrakesh Treaty and new provisions on copyright enforcement to be included in the IP Code. IPA also contributed views on additional consideration of international best practice to improve a draft regulation establishing criteria to apply fair use.

In India, a new bill on mandatory registration processes to authorize publication of journals motivated IPA’s submission, focused on due process and objective criteria to ensure that any new regulations would not affect freedom to publish nor undermine publishers’ ability to fully enjoy and exploit their copyrights.

Finally, in Ireland IPA filed comments to the Irish process to implement the EU DSM Directive in support of our member Publishing Ireland, focused on out-of-commerce works, extended collective licenses and remuneration rights.

IPA will be holding a number of copyright-related events at London Book Fair including a Copyright Committee meeting for committee members only, the Charles Clark Memorial Lecture (in cooperation with the Publishers Association, Copyright Licensing Agency, the Federation of European Publishers, and the Publishers’ Licensing Services) and a session in cooperation with the Publishers Association (UK) on Online Accountability: Enforcing platform liability to support publishing in a digital age. For more details and to see IPA’s full London Book Fair schedule, click here.

Finally, WIPO launched a public consultation process on artificial intelligence and intellectual property policy, inviting feedback on an issues paper designed to help define the most-pressing questions likely to face IP policy makers as AI increases in importance. The paper includes questions on copyright ownership, enforcement, exceptions & limitations and deep fakes. Submissions can be filed by February 14, 2020.

 

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