Video Games Europe welcomes French supreme court decision on the resale of digital video games

Brussels, 24 October 2024 – The French Supreme Court has upheld an October 2022 decision by the Paris Court of Appeal overturning a 2019 first instance decision which had found that purchasers of video games on Valve’s digital platform, Steam, were permitted to resell them. The case was originally filed against Valve in 2015 by the consumer group UFC-Que Choisir.

Simon Little, CEO of VIDEO GAMES EUROPE, said: “We are delighted that the French Supreme Court has now rejected the appeal of UFC-Que Choisir against the October 2022 decision of the Court of Appeal of Paris which had overturned a 2019 first instance decision and ruled that the CJEU judgment in the Tom Kabinet case must be extended to video games. The first instance decision flew in the face of established EU law that recognises the need to protect digital downloads from the ease of reproduction allowed by the Internet. Far from supporting game players, the 2019 decision, had it stood, would have dramatically and negatively impacted investment in the creation, production and publication of, not just video games, but the entire output of the digital entertainment sector in Europe. If Europe’s creators cannot protect their investments and their intellectual property, the impact on both industry and consumers would be disastrous.”

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Note to editors:

Background on UFC-Que Choisir Case against Valve:
On 23 October 2024, the French Supreme Court rejected an appeal by consumer group UFC-Que Choisir against a decision of the Court of Appeal of Paris on 21 October 2022 ruling that the protection of video games is, like that for e-books, subject to the application of the 2001 Copyright Directive as it cannot be reduced to that provided for computer programs under the 2009 Software Directive. In so doing, the Court ruled that the CJEU judgment of 19 December 2019 in the Tom Kabinet case (Case C-263/18 Nederlands Uitgeversverbond and Groep Algemene Uitgevers v Tom Kabinet Internet BV) must be extended to video games. The CJEU had concluded in that case that the supply by downloading, for permanent use, of an e-book was not covered by the right of ‘distribution to the public’ provided for by Article 4(1) of the 2001 Copyright Directive, but by the right of ‘communication to the public’ provided for in Article 3(1) of that directive, in which case exhaustion was excluded under paragraph 3 of that article. In support of this finding, the CJEU had concluded in particular from the WIPO Copyright Treaty underlying the 2001 Copyright Directive, and from the travaux préparatoires for that Directive, that the EU legislature had intended the rule of exhaustion to be reserved for the distribution of tangible objects, such as books on a material medium. The CJEU found that the application of the exhaustion rule 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.

Following the Nintendo v PC Box case (Case C-355/12), in which the CJEU ruled in 2014 that video games constitute “complex matter comprising not only a computer program but also graphic and sound elements, which although encrypted in computer language, have a unique creative value which cannot be reduced to that encryption”, and must be protected by copyright under the 2001 Copyright Directive, Video Games Europe was confident that digital video games would not be subject to any form of exhaustion and that purchasers of digital video games would not have a right to sell them on without the copyright owner’s permission.