The second-hand printed book can be exchanged and resold quite easily: by virtue of the principle of exhaustion of rights, a proprietor cannot oppose the sale of a work, as long as it is already the subject of a first sale, with payment of the related rights.
The ebook obviously shuffled the cards: attempts to resell digital books emerged a few years ago, before being quickly rejected by the courts. In 2018, the United States Court of Appeals for the Second Circuit confirmed the illegality of the sale of second-hand digital files.
” [E]n Strictly applying the Copyright Act, the Court has confirmed that reproducing a copyrighted work without permission and distributing it does not constitute a resale and transfer of a used work, such as in a second-hand bookstore “, At the time welcomed the Association of American Publishers. In particular, the Court had ruled that the guarantees in terms of effective transfer of the digital work, therefore its destruction – so that only one copy remained – were not sufficient.
However, the idea of a digital used market is resurfacing with the emergence and development of NFT technology, for ” non-fungible tokens “(” non-fungible tokens “). In other words, a digital certificate of authenticity, linked to a file, guarantees its uniqueness.
“Participate in each of the sales “
This new approach opens up a very engaging perspective, according to Andy Bird, CEO of the Pearson Group. ” In the analog world, a Pearson textbook could be resold up to 7 times and we only participated in the first sale “, He reminded the shareholders.
” The move to digital has reduced the secondary market for second-hand and technologies such as blockchain and NFT allow you to participate in every sale of a particular copy, throughout its life. “, He continued. Here,” participate obviously it means taking a percentage of the book’s secondary sales. The principle of the exhaustion of rights would thus be conscientiously circumvented.
READ: Copyright and NFT: the public domain in danger?
Bird, who hailed from the Disney group in 2020, gave Pearson a digital twist, a historic school group that missed its conversion a bit. In just a few months, it has raised the bar: since last year the Pearson + app offers students a subscription for $ 14.99 a month to access a catalog of textbooks. Reminiscent of audiovisual streaming services, including … Disney +.
This progressive disappearance of property in favor of perpetual lease would therefore be supported by another movement, where the digital opportunity would be possible only on condition of the disappearance of the exhaustion of rights. The limits set by the courts, due to an impossible control of digital copies, would in fact jump with the identification possibilities offered by NFTs.
In France, the Superior Council of Literary and Artistic Property considered this very specific issue, considering, in the light of current legislation, that the NFT, or JNF, does not ” no longer constitutes [le] material and tangible support of a work: as such, the exhaustion of rights would not apply to this technology, which leaves the door open for the implementation of a system described by Pearson’s CEO.
” Under these conditions, the provision by download via JNF of a digital file, for permanent use, could fall within the right of “Communication to the public” provided for by Directive 2001/29, not liable to exhaustion of rights, which is not without repercussions on the development of the JNF in the music and publishing sectors, for example “, The CSPLA rightly concluded in its opinion.
photo credits: ActuaLitté, CC BY SA 2.0