Boersenverein: The Resale of Digital Content Would be a “Blow to All Culture Industries”

4820280046_ebe9dd0bb5_bThe right to resell ebooks has broad support from activists, the Dutch courts, and German regulators, but publishers aren't so happy.

Boersenverein, the German book industry trade group, has officially responded to the news that earlier this week that a German consumer protection ministry wants consumers to have the right to resell ebooks they buy.

Alexander Skipis , CEO of Boersenverein, told Actualitte:

It would be a blow to all cultural and creative industries if allowed by law to sell or move to other digital content 'used'. Digital books can be almost infinitely reproduced and distributed without ever wear. The primary market for e-books and audio books would be completely destroyed if there were a legal market opportunity. For publishers and distributors would be impossible to continue working together on sustainable downloading models and customer-friendly. This would mostly cultural offer and therefore consumers will suffer.

Apparently the CEO of Boersenverein thinks that the ebooks have no long-term value to readers, and that the readers will immediately sell an ebook once they finish reading it.

Or perhaps I am misinterpreting the translated text; maybe Skipis thinks that readers will pirate their ebooks and sell multiple copies. While that is possible, I would remind you that ebook piracy already exists and it has not yet killed off the ebook market.

Also, the used paper book market has been around for, what, a few centuries now? Do you know if it has killed off the publishing industry yet?

Frankly, the objections are absurd, and in a way that is good news. If this doom-and-gloom is the best argument that publishers can come up with then there is no good reason that consumers should not have the right to resell their ebooks.

image by J. Tegnerud

About Nate Hoffelder (11468 Articles)
Nate Hoffelder is the founder and editor of The Digital Reader: "I've been into reading ebooks since forever, but I only got my first ereader in July 2007. Everything quickly spiraled out of control from there. Before I started this blog in January 2010 I covered ebooks, ebook readers, and digital publishing for about 2 years as a part of MobileRead Forums. It's a great community, and being a member is a joy. But I thought I could make something out of how I covered the news for MobileRead, so I started this blog."

19 Comments on Boersenverein: The Resale of Digital Content Would be a “Blow to All Culture Industries”

  1. With ebooks, I do not see the “first sale” doctrine (this allows one to resell paper books) to apply to ebooks to allow for resale. At least in the Amazon/iTunes user agreements, it says you don’t own the ebook, you are just renting it.

    It is a valid concern that someone would be able to pirate the ebook and then sell it. Ebook piracy is low, but if you are able to sell the pirated item it would increase.

    • That same clause can be found in software licenses, but it’s not valid in Europe. As I explained in the other post, the ECJ has ruled that the exhaustion doctrine precludes sellers from forcing you to give up the right to resell software.

      Now we want to see the same principle applied to ebooks.

  2. Reselling digital books would make more sense if it included a scheme that ensured that what was being resold wasn’t:

    1. An ebook whose DRM was broken and a copy being retained by the original purchaser.

    2. A pirated book.

    That would merely make digital resale the equivalent of reselling a used print books. it’d mean that in both cases, what you sold is what you no longer possess.

    It’d also be good if the system including paying royalties to the author/publisher for each resale. That’d compensate for:

    1. The fact that digital books don’t wear out. Old is as good as new.

    2. The fact that digital books are expected to sell for less. Allow resell without resell royalties, and publishers would be well within their rights to price re-sellable ebooks the same as their re-sellable print equivalents. If one sale means multiple owners, then that one sale has to pay better to cover the lost sales to those later owners.

    –Michael W. Perry, co-author of Lily’s Ride

  3. The publishers don’t even seem bothered that people can break the drm and keep copies of library e-books. That being the case, I’m not sure they’d be bothered over that happening for resold e-books either.

  4. The resale of print books is not comparable. You pay for three things, the physical surface of the content, the costs of producing that book with distribution costs as for any other product, and a LICENCE to read the content. Look at the copyright information next time you buy a print book.

    The ebook is – in essence – only that content, licenced content, with the interpretation code for a separate hard reading surface whether in a dedicated reader, a tablet, laptop or desktop.

    Confusing the two states is inexcusable by anyone who comments as an authority.

    And Chris, this is not a DRM issue – that is separate as you know. Outside the prisons like Kindle and iBooks I am not sure that DRM is used much anymore as it is more an irritant to honest readers than a dissuasion for the dishonest.

    • No, what is inexcusable is your mistaken belief that a book comes with “a LICENCE to read the content”.

      That’s not even close to what copyright law says, and furthermore the US Supreme Court already shot that idea down in the case that established the right of first sale.

      A publisher cannot assert an implied contract or license on a paper book.

  5. Nate,

    The court has not given such right in relation to ebooks; please specify the case and link where you claim it happened. Nor are you right about content; licensing is the whole basis of copyright. Every permission to use created material is a licence; these licences are effected through contracts.

    I suggest you spend a little time searching at WIPO, the international IP body, and at the US Copyright Office – we’ll even welcome you at the UK one.

  6. Then you are wrong. Most print books state “all rights reserved” and most have the copyright slug. Thus it is clear that they are sold under copyright. In about 180 plus countries that is known to mean that you are not entitled to copy the content of a print book. Ebooks are content only; the same applies *if copyright is to continue*.

    Most books, on their copyright page, state “No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means…” Thus it mostly is not even implied but clearly stated; the extract I quote is from Collins Dictionary 2005. Encarta Book of Quotations 2000 has the same words. Similar words in Photoshop for Windows & Macintosh

    In the US that was long ago fully established with photocopying. You do in fact have an implied contract with every sale of every product that is made. Every time you buy from a shop you expect a product that meets its specifications. If not you expect your money back – or the right to sue. That is an implied contract backed by law.

    If you buy a book the implied contract is that you, the buyer, have no right to duplicate the book. This *fact* has to be more than implied with ebooks because they are so easy to copy and to distribute.

    If you do not believe what I write, ask the US Copyright Office. Oh, yes, And I note, Nate, that you have not produced the support for your claim that ebooks can be resold. The print determination by Scopus did not change the fact of the right of resale; it was determination about books imported and resold. Print books were not easy to reproduce, and so the question of the content being licensed never used to need emphasising. In the electronic age it does need to be.

    The pity of that case, which was against the publishers Wiley, was that it meant US text book publishers could no longer offer texts more cheaply in poor countries where they are so very important. And that is why the test book publishers have concentrated on ebook alternatives, which are heavily DRMd.

  7. Nate: Copyright law actually DOES allow owners to sell licenses. Only the European courts have concluded that rights-holders can’t sell licenses to end users, but only to other producers and publishers. The logic is ridiculous and the yes, the piracy is going to be far, far worse.

    The reason is clear: Pirates for profit (those who SELL their stolen goods, generally to those who don’t realize that they are stolen) have two impediments:
    — They can’t sell through trusted retailers and people are afraid of having their identity stolen or of getting malware with the goods.
    — They have trouble getting found by customers, who generally look for books on one of a very small number of retailers.

    This stupid (and yes, I think it’s as dumb as box of hammers) ruling will enable them to sell through trusted retailers, right beside the legit product. And unlike used print books, used ebooks are exactly the same, and of exactly the same quality, delivered by the same process — but cheaper.

    There WILL be huge consequences to European publishers, and to those US publishers that sell directly or through sub rights sales into Europe.

    This is going to generated unintended consequences in a big way.

  8. Allowing members of the public to “resell” digital content is already taking place illegally on EBay. EBay sellers falsely claim that they own the “ReSell” rights, and can sell “ReSell Rights” to others, so the same illegal collections of illegally copied ebooks are duplicated and sold by increasing numbers of EBayers.

    Recently, I saw someone selling multiple copies of Diana Gabaldon’s ebooks for $1 each with “Resale Rights” included. That seller’s customers then sell copies to others. This is a microcosm of what would happen if it were lawful to resell ebooks. Legal copies of Gabaldon ebooks probably do not sell on legal retail sites for $1.

    If it were legal to resell an ebook, the same “copy” could be sold thousands of times, where a paper book would probably fall apart after its seventh or eighth owner.

    Also, many authors and publishers (as in the Baen experiment) give away the first ebook in a series free, or sell it on Amazon during a promotional period for $0.00 . The assumption is that the ebook will come off promotion after a short time. What happens to the promotion if readers can “buy” the free book for nothing, and then have the right to sell it for whatever they please?

  9. I stream many videos from Netflix and Hulu each month. I can watch them as many times as I like. I CANNOT make copies of them and resale them or give them away to friends and family. Netflix and Hulu would like take legal action, and with just cause.

    A paperbook is sold. It’s not “OWNED” The author still owns all rights. You as consumer has the right to read it as many times as you like, and you can even share the book with friends. But it will fall apart in 5-7 readings, thus the book self-destructs like at the start of Mission Impossible. E-books are not “owners” You are leasing the right to read them. Amazon makes sharing with a few family members or friends an option. I don’t think most authors have a problem with them.

    However, you do NOT own the e-book any more than you own a movie of television program off Netflix. You are “Renting” them. You cannot make copies, you cannot sell them…long and short of that.

    To make copies of an e-book with no “self-life” no “self-destruct” after you read, only encourages people who are thieves to sell and resell authors works.

    It’s going to kill publishing if you don’t wake up and offer protection to people just trying to make a living. You favourite authors will just give up because they will be working for few. It cost authors a lot to get a book out there. Like everyone else, they are just trying to keep their heads above water.

  10. Marion,

    Are you thinking of the Oracle case a few years back? This was about software contract issues and had no effect on ebooks at all. Otherwise I am not aware of any ban on licensing to end users of copyright here. Certainly UK law is the same as US in that respect, and I have heard of no counter EU law or court decision.

    In fact both Germany and France are generally more protective of copyright and creator rights than almost any other country.

  11. By the way Nate, your suggestion that *German* regulators are calling for resale rights for ebooks is misleading. This is the quote “Consumer Protection Ministry for the German state of Baden-Württemberg is now calling for consumers to have the right to resell the ebooks they buy.” It is from

    And I see that article is also by you; hardly an independent source!

    Baden Wurtemberg is a state within the Federal structure of The Federal German Republic, just as Montana is a state within the USA. The regulators of Baden Wurtemberg cannot change German law.

  12. Deborah,

    Netflix and Hulu are not comparable to ebook purchases because they are subscription services much like Kindle unlimited. You pay a monthly fee for access to a library of material. It’s explicitly stated that you do not own any of the material.

    When you buy an ebook from a retailer, this is an explicit sale, not a rental. In the US, normally first sale doctrine includes the right to resell an item. The US courts have ruled that first sale doctrine does not apply to digital purchases, but that does not legally make them rentals. The European Court of Justice has ruled differently, but requires that the reseller must no longer be able to use the material in question.

  13. Thomas,

    Video rentals was used as a comparison by Deborah. The principle is exactly the same. The content is licensed and the rights of the renter are limited. With ebooks and software the purchase is of a licence to use. Kindle and others could not run their systems if copyright material was other than licensed.

    Resale rights, First Sale rights in the US, do not permit resale of copyright content. At no time has a court ruled otherwise, in the US or in Europe. Nor is there any law permitting it.

    Attempts to suggest that it is otherwise are not based on fact.

    If there is a wish to change the law, then there are well-known and well worn routes to do so. However, Copyright is an international issue. It is bound up in countless trade treaties, and the copyright industries are a very important part of the economies of western nations.

    I suggest you and Nate look at the US Constitution, read its reference to authors and inventors, and wonder why the Founding Fathers thought it so important as to merit inclusion in the Constitution, rather than leave the whole thing to normal legislative process.

  14. Thomas, if you “buy” an ebook, you “buy” the right to read it on your own devices for as many times as you wish. However, you do not acquire the copyright or any portion of the copyright. You do not acquire any rights to reproduce (or copy) the ebook, nor do you acquire any rights to distribute (or share or sell or lend) the ebook. You may physically lend your loaded physical device to someone else, but you may not burn or email or otherwise create a copy and send it to someone else, because the right to make copies is reserved by the copyright owner.

    The copyright owner’s “Copy rights” trump First Sale Doctrine.
    You may sell a physical book because you only have one copy, and once you have sold it, you don’t have it any more.

    The technology required to ensure that anyone who sold an ebook did not retain a copy would be intolerably intrusive. Be careful what you wish for!

  15. Joseph,

    Deborah was comparing ebooks to streaming services, not video rentals. The two are similar in content, but not in execution. Neither is really comparable to ebook sales, where the purchase is not time-limited.

    First Sale rights do allow resale of copyrighted books, DVDs, etc. There is a specific exception in the case of sales of digital-only media. I never said that included the right to make additional copies.

  16. Thomas,

    I was shortening “video content streaming”; but yes, I should be more precise. The point, which I will make again, is that content is copyright, and is licensed not sold. The print book is a composite; it has both content and reading surface, and the two cannot be separated. Thus first sale rights are of the composite. The content is still licensed to the new buyer.

    The CD and DVD slip into the resale rights slot because the container is here a hard material – the disc itself. The content remains licensed. But it is a moot point whether is should have first sale rights, since you need another device to see the content.

    The reason it is so important to understand what is licensed is because with digital technology copies are easy to make in seconds. This moves the debate away from first sale rights because any file of content is almost purely only the content. Not to maintain the strict inviolability of the licensed material is to destroy important industries; it is not just a matter of print books and ebooks.

    In the US the copyright industries contribute tens of billions of dollars to the economy and, from memory, well over a million jobs. You can see the full report here . And note the value is much higher than I recalled – $1.76trillion in 2013, and it is over 11 million jobs in 2012. A lot at stake here.

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