1709 Blog: for all the copyright community

Friday, 28 June 2013

How far will exhaustion go after UsedSoft? Do let us know!

Calling all exhaustion fans! The IPKat has just launched a poll to gather readers' opinion as to whether the ruling of the Court of Justice of the European Union (CJEU) in Case C-128/11 UsedSoft v Oracle (see Katposts here and 1709 Blog posts here) is likely to be extended to subject-matter other than software.

As 1709 Blog readers will remember, in that case decided almost a year ago the CJEU ruled that 

"Article 4(2) of Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs must be interpreted as meaning that the right of distribution of a copy of a computer program is exhausted if the copyright holder who has authorised, even free of charge, the downloading of that copy from the internet onto a data carrier has also conferred, in return for payment of a fee intended to enable him to obtain a remuneration corresponding to the economic value of the copy of the work of which he is the proprietor, a right to use that copy for an unlimited period."

Pro- vs anti-exhaustion: who will win?
A few months ago a German court held (see Katpost here) that, because of the nature of the Directive 2009/24 (the Software Directive) as lex specialis, the reasoning in UsedSoft could not be applied to other subject-matter (downloadable ebooks and audiobooks in that case). 

However, from the mini-poll that this blogger ran while in Oxford to attend the ATRIP Congress, there seems to be growing belief that the CJEU, when given the opportunity to do so, would rule that exhaustion does indeed apply to digital works other than software.

The main arguments to support this conclusion are CJEU's overriding concerns with ensuring free movement within EU internal market and the fact that ebooks, downloadable audiobooks, digital music are not really "on-line services" for which "the question of exhaustion does not arise" (see Recital 29 to the InfoSoc Directive).

Do vote in the Exhaustion Katpoll!
This blogger is however slightly concerned whether this might be really the case, in that the Court made it quite clear that its conclusion descended from the special nature of the Software Directive. Furthermore, one of the aims of the InfoSoc Directive was to transpose the WIPO Copyright Treaty into EU legal order. The right of distribution as per Article 6 of the Treaty concerns just tangible - not also intangible - copies. Hence, is it possible to say that exhaustion as per Article 4(2) of the InfoSoc Directive applies only to tangible copies?

You have time until Friday 5 July to cast your vote, by clicking your chosen button on the left-hand side of the IPKat content bar. 

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