The Need for a More Balanced Policy Approach for Digital Exhaustion

Péter Mezei; Caterina Sganga

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Chapter 5 The Need for a More Balanced Policy Approach for Digital Exhaustion

In: Harmonizing Intellectual Property Law for a Trans-Atlantic Knowledge Economy

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Péter Mezei

Péter Mezei
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Caterina Sganga

Caterina Sganga
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Type:: Chapter

Pages:: 133–153

DOI:: https://doi.org/10.1163/9789004686212_007

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The decisions of the Court of Justice of the European Union (CJEU) in the Tom Kabinet case and of the US Second Circuit in the ReDigi case seemed to rule out the viability of digital exhaustion for good. The two decisions reached similar conclusions on the basis of a wide array of arguments. The courts attributed different weight to policy and technological arguments as determinant factors justifying the final decisions. It is nevertheless far from certain that the right answer has been reached by the CJEU or the Second Circuit. The judicial development of the exhaustion or first-sale doctrine on the two sides of the Atlantic Ocean represents a laboratory for an interdisciplinary comparative analysis of the evolution of digital copyright law. Such analysis might focus on legal and economic issues. Indeed, it constitutes a “stress test” of the ability of concrete copyright outcomes to keep on fulfilling copyright functions. Against this background, this chapter analyses the policy arguments used by the CJEU and the Second Circuit to support their decisions, employing comparative law methods to verify whether and to which extent the rejection of the digital exhaustion doctrine is consistent with the cause of balance in copyright or necessary for the performance of the full panoply of copyright functions. As we will show, this balance is at least partially upset by the rigid interpretation of the copyright status quo. This is even more visible, if we extend our analysis of legal principles from outside of copyright law, including contract and consumer protection law, as well as social justice arguments, which are also important in the digital domain.

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Harmonizing Intellectual Property Law for a Trans-Atlantic Knowledge Economy

E-Book ISBN:: 9789004686212

Publisher:: Brill | Nijhoff

Print Publication Date:: 22 Apr 2024

Subjects
- History
  - Legal History
- International Law
  - Intellectual Property Law

Front Matter

Part 1 Pursuit of Harmonization

Part 2 Divergences in Harmonization

Part 3 Innovation for or against Harmonization?

Part 4 The Challenges of Technological Advancements to IP Doctrine – Any Space for Harmonization Yet?

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Chapter 5 The Need for a More Balanced Policy Approach for Digital Exhaustion

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Harmonizing Intellectual Property Law for a Trans-Atlantic Knowledge Economy

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