Recital 44 asserts that the question of exhaustion does not arise in the context of online delivery of (digital) works, which is generally understood to mean that the owner of copyright maintains full control over the digital dissemination of digital works. Above and beyond impacting upon the question of whether exhaustion may occur online, a broader issue is at stake here. Historically, the exhaustion rule developed out of the notion of an implied licence. The latter was an attempt to explain the loss of control rights of IP owners following the first act of exploitation.
This chapter looks to the present and future relationship between IP and the creative industries in the context of diversity. It discusses films (including cartoons) their approaches to homosexuality, gender and discrimination and some examples of this enabling a more inclusive approach to important issues for society. In contrast, the chapter notes that the creative industries themselves often do not pursue diversity, for example the Academy Awards of 2016 and a focus on generating toys of the male, rather than female, characters in Star Wars. Against this backdrop, the chapter explores the contribution which IP can make to the evolving relationship between the creative industries and diversity. Among other examples it explores the 2017 decision of the US Supreme Court regarding the ‘Slant’ trade mark, changes within copyright law regarding some disabilities, changes in power holders as a result of new technologies and contrasting to approaches to IP – some based in utilitarianism, some in respecting cultural diversity. The chapter calls for IP to bring about new approaches to the protection of diversity, and argues that wider methodologies can assist in this.