Chapter 9: Exhaustion of rights: a concept for the digital world?
Digitization and the development of the Internet have given rise to a multitude of new business models, many of them involving the use of protected works. Since most national copyright laws were made in and for the analogue world, it is often not apparent from the statutory text if and to what extent these uses require the consent of the copyright owner. Judges then face the difficult task of deciding whether the old rules can be applied to new phenomena in accordance with established doctrinal principles, whether copyright policy allows an application of existing provisions by analogy, and whether the courts can take a pro-active role without overstepping the line between adjudication and legislation. The issue of exhaustion is an example in point. The business of reselling media products is as old as printed matter itself. Used books have always been resold, as romantically evidenced by the stalls of the bouquinistes on the banks of the river Seine. The analogue model has been extended without major difficulty to carriers of digital data such as DVDs. But the business of reselling entirely digital products without transferring the corresponding data carriers is a new one. Two names have become associated with this new business model.