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Digital First Sale Doctrine Ante Portas -- Exhaustion in the Online Environment

JIPITEC – Journal of Intellectual Property, Information Technology and E-Commerce Law, Vol. 6., Issue 1., p. 23-71, 2015

49 Pages Posted: 8 Jun 2015  

Péter Mezei

Institute of Comparative Law

Date Written: June 7, 2015

Abstract

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. 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. 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. 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. The UsedSoft preliminary ruling and the subsequent German domestic decisions highlight a special treatment for computer programs. 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 paper takes the position that the need for digital exhaustion is constantly growing in society and amongst businesses. Indeed, there are reasonable arguments in favour of equalizing the resale of works sold in tangible and intangible format. Consequently, the paper urges the reconsideration of the norms on exhaustion on the international and EU level.

Keywords: Digital Exhaustion, Umbrella Solution, Usedsoft, ReDigi, WCT/WPPT, CJEU

JEL Classification: K10, K11, K12, K19, K33, K42

Suggested Citation

Mezei, Péter, Digital First Sale Doctrine Ante Portas -- Exhaustion in the Online Environment (June 7, 2015). JIPITEC – Journal of Intellectual Property, Information Technology and E-Commerce Law, Vol. 6., Issue 1., p. 23-71, 2015. Available at SSRN: https://ssrn.com/abstract=2615552

Péter Mezei (Contact Author)

Institute of Comparative Law ( email )

Bocskai u. 10-12.
Szeged, H-6721
Hungary
+36-62-546-735 (Phone)

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