Dutch court refers preliminary questions on the lending of e-books to EU Court of Justice

As reported in a press release (in Dutch), the Court of Appeal of The Hague (The Netherlands) decided on 3 September 2014 to refer preliminary questions on the lending of e-books to the EU Court of Justice (CJEU). The case concerns The Dutch Association of Public Libraries v. Stichting Leenrecht.

The Dutch Court asks, inter alia, for clarification on the scope of the decision in Case C-128/1, UsedSoft v. Oracle, delivered by the CJEU in July 2012, in which the CJEU established that, under certain circumstances, exhaustion of the distribution right within Article 4(2) of the Software Directive 2009/24/EC may take place for computer programs downloaded from the copyright holder’s website. 
In the recent decision of the Court of Appeal of Hamm (Germany), the German court upheld the earlier ruling of the Regional Court of Bielefeld (see: IFRRO website), and held that the right of distribution is not subject to exhaustion when it comes to digital subject-matter other than software, because the EU Software Directive is to be considered as lex specialis in relation to the provisions of the EU Information Society Directive. The lex specialis nature of the Software Directive has also been re-affirmed by the CJEU in its decision in Case C 355/12, Nintendo.