ATRIP Intellectual Property series
Edited by Jan Rosén
Chapter 3: Emerging escape clauses? Online exhaustion, consent and European copyright law
Article 4(2) of the European Union Copyright Directive (EUCD) obliges member states to implement the exhaustion doctrine in national copyright laws. Exhaustion occurs once a copy of a work has been put on the market by, or with consent of, the copyright owner. That rule has long been accepted as a core principle of European IP law. It is derived from the preceding jurisprudence as regards, predominantly, parallel imports under primary EU law – that is, the rules on the prohibition of anticompetitive agreements and the subsequent application of the exhaustion doctrine under the rules on the free movement of goods. It was further expressly established in secondary legislation, including the relevant directives in the remit of trade marks, designs, computer programs and databases. What distinguishes the treatment of exhaustion under the EUCD is the fact that, for the first time, it is expressly explained that exhaustion occurs only and apodictically with respect to the putting into circulation of physical copies.
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