One of the exclusive rights granted to right holders is the right of distribution. Exhaustion belongs to the above list of limitations. Further, several types of works are per se exempted from copyright protection. Such an example is the territoriality the copyright term the limits of alienability of economic rights the statutory and compulsory licences free use or fair use /fair dealing. The exclusivity of rights has been broken by several legal instruments. It turned out to be necessary to balance the interests of the right holders and the society (consumers), further – and most recently – the intermediaries (internet access providers, search engines, hosting service providers, aggregators etc.), in order to guarantee the effective operation of this territory of law and businesses related thereto. It has been, however, universally accepted that the interests of the right holders shall be limited in some ways. National legislators were led by their own domestic interests when creating the original set of their copyright systems. Consequently, the paper urges the reconsideration of the norms on exhaustion on the international and EU level. Indeed, there are reasonable arguments in favour of equalizing the resale of works sold in tangible and intangible format. The paper takes the position that the need for digital exhaustion is constantly growing in society and amongst businesses. On the other hand, the refusal of digital exhaustion in the ReDigi and the audio book/e-book cases might be in accordance with the present wording of copyright law however, they do not necessarily reflect the proper trends of our ages. The UsedSoft preliminary ruling and the subsequent German domestic decisions highlight a special treatment for computer programs. The author of the present article stresses that the answers given by the respective judges of the referred cases are not the final stop in the discussion. Questions related to the licence versus sale dichotomy the so-called umbrella solution the “new copy theory”, migration of digital copies via the internet the forward-and-delete technology the issue of lex specialis and the theory of functional equivalence are covered later on. Based upon this introduction, the paper turns to the analysis of the doctrine by the pioneer court decisions handed over in the UsedSoft, ReDigi, the German e-book/audio book cases, and the pending Tom Kabinet case from the Netherlands. The purpose of the article is to provide first a doctrinal summary of the concept, rules and policy of exhaustion, first, on the international and EU level, and, later, under the law of the United States.
0 Comments
Leave a Reply. |
AuthorWrite something about yourself. No need to be fancy, just an overview. ArchivesCategories |