Does exhaustion apply to works other than software? Here's a Katpoll

Do vote in our Katpoll!

This Kat has just returned from the idyllic setting of Pembroke College in Oxford, where she attended the 32nd ATRIP congress. Organised and hosted by ATRIP president - the learned and charming Professor Graeme Dinwoodie - this 3-day conference was devoted to answering the following question: Is Intellectual Property a Lex Specialis? 

There were many exciting discussions which elicited this Kat's curiosity. However, there was one in particular on which she would like to receive IPKat readers' feedback. 

This concerns the principle of exhaustion as interpreted and applied by 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). 

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

In other words, the Court held that Article 4(2) of the Software Directive is to be interpreted in the sense that the right of distribution over the copy of a computer program is exhausted following the grant of a licence if this can be considered tantamount to a sale, despite the different contractual qualification given by the parties.

Deep-in-thought: how far-reaching
is the UsedSoft ruling?

It is currently being discussed whether the decision in UsedSoft can be extended to subject-matter other than software.

A few months ago a German court held (see Katpost here) that, because of the nature of the Software Directive as lex specialis, the reasoning in UsedSoftcould not be applied to other subject-matter (downloadable ebooks and audiobooks in that case). Thus the Landgericht Bielefeld held that the InfoSoc Directive does not permit application of the principle of exhaustion to works in non-analogue form. 

Following discussion (and mini-poll) with a number of academics at the ATRIP Congress, this Kat realised that there is 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 (in a similar sense, see Graham Smith/Cyberleagle's analysis here; cf the diverging approach in the US here).

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).

In other words, the ruling in UsedSoft would not be really lex specialis, but rather lex generalis 

Brad has been thinking about
copyright exhaustion for months now
(especially when wishing to fall asleep quickly)

under EU copyright.

This Kat 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?

Discussing these issues is not just for the sake of getting a headache early in the morning but – among other things - is actually relevant to debates about potentially lucrative markets for second-hand digital goods. 

This is why the IPKat is launching a poll to gather readers' feedback. The question is:

IS THE CJEU LIKELY TO EXTEND THE USEDSOFT RULING TO WORKS OTHER THAN SOFTWARE?

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. 

Do let us know what you think!