Online copyright exhaustion in a post-Allpostersworld

Abstract

Article 4(2) of Directive 2001/29 (the InfoSoc Directive) provides that the authorized first sale of a work within the territory of the European Union (EU) exhausts the right of the copyright owner to control any subsequent distribution of the work in question. What the Court of Justice of the European Union (CJEU) had been asked to clarify in this case was whether this rule also applies to works that, following their authorized first sale, are subject to an alteration of their mediums and are then re-marketed in this new form. The court referred to both Recital 28 in the preamble to the InfoSoc Directive and Article 6 of the WIPO Copyright Treaty, including the Agreed Statement on Articles 6 and 7, to hold the view that exhaustion of the right of distribution only applies to the tangible copy of a work. In so doing, albeit rooted within a very specific (analogue) background, the CJEU appeared to rule out any possibility of having digital exhaustion under the InfoSoc Directive. Whether EU law allows digital exhaustion arguably remains however an unresolved issue, with diverging interpretations being provided at the level of national courts. Yet, despite the legal and economic relevance of allowing markets for second-hand digital works, current EU copyright reform plans seem regrettably not to include any consideration of issues facing general digital exhaustion, or its lack thereof.