The popularity of so-called electronic books is rapidly growing in the Czech environment as well. This is reflected in the number of various articles devoted to this topic. However, some interesting legal aspects connected with this form of distribution of copyright works are mentioned less frequently. The handling of an electronic book is subject to a different legal regime than is the case with ordinary books. This contribution is devoted to a basic outline of this issue from the perspective of Czech law.

At the outset, it is certainly important to define what we actually mean by an e-book. For the purposes of this article, we consider an e-book to be a literary work (as an intangible asset) which is not distributed on a tangible medium (on paper, on CD-ROM or on the memory medium of a reader). It is also appropriate to mention that we shall not deal in greater detail in this article with literary works in respect of which the term of protection of economic copyright has expired, that is, so-called free works. Free works may, after all, be used by anyone without further ado, including the making of electronic copies thereof. The fact that in the case of e-books the literary work (unlike ordinary books) is not distributed on a tangible medium has important legal consequences. Specifically, this fact significantly affects the rights of the end “consumer” (reader) of such an e-book. Conversely, from a legal point of view, there is no difference between an ordinary book and the case where a literary work is distributed in electronic form but on a tangible data medium (for example, together with an electronic reader).

The distribution of ordinary books is regulated by the provision of Section 14(1) of the Copyright Act (Act No. 121/2000 Coll., as amended), under the concept of dissemination. According to this provision, dissemination of the original or a reproduction of a work means “making the work available in tangible form by sale or other transfer of ownership of the original or of a reproduction of the work, including offering them for this purpose.” Dissemination is therefore always linked to the “tangible form” of the work.

In connection with the use of a work by dissemination, it is then important that by the first sale of an ordinary book (transfer of ownership) there occurs the so-called exhaustion of copyright in the reproduction of the work. Exhaustion of copyright in a reproduction of a work is regulated by the provision of Section 14(2) of the Copyright Act, as follows: “By the first sale or other first transfer of ownership of the original or of a reproduction of a work in tangible form, which was effected by the author or with his consent in the territory of a Member State of the European Communities…, the author’s right to dissemination for the territory of the European Communities… is exhausted in relation to such original or reproduction of the work; the right to rental of the work and the right to lending of the work remain unaffected.” What does this mean?

If the aforementioned exhaustion of rights in a reproduction of a work occurs, the holder of rights in this literary work cannot control further handling of that particular book (copy). His exclusive right to dissemination of this copy of the book (the right to its distribution) is exhausted by the first sale. Every subsequent owner of the book may further handle this copy of the book in the manner we consider entirely normal. He may sell the book onwards or lend it to a colleague. And all this quite logically without the consent of the holder of rights in the literary work. Without this consent, however, not even the owner of an ordinary book is entitled, for example, to rent it or to make the recorded literary work available to the public (by lending within the meaning of the Copyright Act or by communication to the public in the internet environment).

In the case of e-books, their dissemination in the copyright sense of the word is not in question, since these are not distributed in tangible form. There is therefore no transfer of ownership of a tangible reproduction of the literary work, and thus the above-mentioned exhaustion of the author’s rights in the individual reproductions provided cannot occur either. In the case of literary works made accessible without a tangible medium, that is, most frequently via the internet, from the copyright perspective this constitutes, on the part of the distributor, a use termed communication of the work to the public. In the language of the law, communication of a work to the public according to the provision of Section 18 of the Copyright Act means “making the work available in intangible form, live or from a recording, by wire or wireless means”, including “making the work available to the public in such a way that anyone may have access to it at a place and at a time individually chosen by them, in particular by computer or similar network.” Communication of a work to the public is therefore not associated with exhaustion of the author’s rights. Which in effect means that if a copyright work is made accessible to someone via the internet for the purpose of making a copy thereof, this does not mean that such person may automatically further handle the copy in question in a legal sense (that is, for example, sell it).

The difference in the legal situation in relation to the distribution of copyright works may be demonstrated by an example from another field. If a user “downloads” a copy of a musical composition from a website, whether from an official or unofficial source (so-called free use), he is not entitled to sell the copy thus made onwards or otherwise handle it in a legal sense. However, if a user purchases the same composition on CD, he is entitled to sell or give away this CD together with the copy of the composition onwards (to any third party).

To what is the end user of an e-book actually entitled? This will depend primarily on the scope of rights which the distributor of the e-book himself provides to him. In the event that a licence or sub-licence agreement is concluded between the end user and the distributor, the end user will have the authorisations granted to him by such agreement (similarly to the case with software distribution). A licence or sub-licence agreement may be concluded entirely informally (orally) and it will also depend on the conduct of the distributor towards the end user whether it may be inferred from such conduct that a licence to the literary work has been granted, or as to the scope of such licence. However, according to experience from practice, it so far appears that licence or sub-licence agreements are not concluded between the end user of an e-book and the distributor. In the event that a licence or sub-licence agreement is not concluded, the end user is entitled to use the literary work only on the basis of the law. This means that the distributor merely makes the literary work accessible for the purpose that the end user makes a reproduction for personal use (so-called free use), or sends him the reproduction directly to the reader. In such a case, the distributor does not provide any authorisation, any licence.

The legal regulation of free use is contained in the provision of Section 30(1) and (2) of the Copyright Act: “Use for the personal use of a natural person, the purpose of which is not the achievement of direct or indirect economic or commercial advantage, shall not be considered use of a work under this Act…” “A person who makes a recording, reproduction or imitation of a work for his personal use does not thereby infringe copyright.” A reproduction for personal use may therefore be made exclusively by a natural person, for non-commercial purposes. Legal persons or natural persons engaged in business, however, no longer have this entitlement; they are entitled to make a reproduction of a literary work only on the basis of a licence or sub-licence agreement. We have dealt with the issue of free use in greater detail here. In this regard, the method of distribution of e-books may be of interest, which in some cases differs from standard procedures for other intangible assets. As an example, it is possible to cite the Kindle books service of Amazon.com Inc.

If a licence agreement is not concluded between the end user of an e-book and the distributor, such user is only guaranteed a minimum scope of rights. Just as is the case when a person obtains a reproduction of a copyright work from an unofficial source. Theoretically, for example, the sale of a medium (reader) with stored literary works by a user would therefore constitute an infringement of copyright. Naturally, as stated, this applies only on the assumption that the literary works were not lawfully stored on the reader at the time of its first placing on the market. Literary works disseminated in this way have the same regime as ordinary books. Paradoxically, the same literary work may thus have a different legal regime, depending on the method of its distribution.

It follows from the above that holders of rights may, in the case of distribution in the form of e-books, influence the handling of a literary work to a far greater extent, not only from a technical but also from a legal point of view. Although e-books have a number of undisputed advantages, the legal position of the acquirer of an e-book is weaker than the position of a purchaser of ordinary books. Without concluding a licence agreement with the distributor (which does not yet occur in practice), a user cannot, after all, legally sell an e-book or lend it to another person. Naturally, only the future will show whether this circumstance will have any more significant practical negative impacts on readers.

This text was translated from Czech to English using an AI translator.