Innovation, Competition and Collaboration

Innovation, Competition and Collaboration

Edited by Dana Beldiman

As innovation processes become increasingly collaborative, new relationships among players in the innovation space emerge. These developments demand new legal structures that allow horizontally integrated, open and shared use of intellectual property (IP). This book examines the fundamental issues regarding the collaborative use of IP and discusses emerging trends including: the interpretation of FRAND terms in the context of standard essential patents; secondary liability of technology providers; contractual arrangements in trademark law, and the treatment of IP issues in specific emerging industries.

Chapter 9: Exhaustion of rights: a concept for the digital world?

Ansgar Ohly

Subjects: innovation and technology, intellectual property, law - academic, competition and antitrust law, intellectual property law

Extract

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.

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