Three Hundred Years Since the Statute of Anne, from 1709 to Cyberspace
Edited by Lionel Bently, Uma Suthersanen and Paul Torremans
Chapter 25: The Legal Perspective on Exhaustion in the Borderless Era: Consideration of a Digital First Sale Doctrine for Online Transmissions of Digital Works in the United States
Marybeth Peters* 1 INTRODUCTION In the era of the Statute of Anne, practical economic and geographic barriers limited the scope of ‘the importation . . . or selling of any books . . . printed beyond the seas . . .’ as permitted under the statute.1 Today, digital works are transmitted online in what is effectively a borderless era, at least in comparison with the barriers that existed 300 years ago. The current ease of reproduction and online transmission of perfect copies of digital works is one of the fundamental characteristics of the borderless era that led the United States to be cautious when considering the application of the principle of exhaustion – or what is generally referred to in the United States as the first sale doctrine – to online transmissions of digital works. The first sale doctrine does not currently apply to these transmissions under United States copyright law, but the question was the subject of an extensive study by the United States Copyright Office2 and is raised again on occasion as new online technologies and delivery mechanisms emerge.3 This paper briefly examines the background and reasons Register of Copyrights, United States Copyright Office. Statute of Anne § 7 (1709). 2 DMCA Section 104 Report: A Report of the Register of Copyrights Pursuant to § 104 of the Digital Millennium Copyright Act (2001), available at http://www.copyright.gov/reports/studies/dmca/dmca_study.html (‘Section 104 Report’). 3 Although the context is somewhat different given the difference in exclusive rights involved, similar questions have been raised in Europe regarding the possible 1 * 329 330 Global copyright...
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