Predmeti ReDigi i UsedSoft: nekoliko odgovora i bar toliko neodgovorenih pitanja
Bogdan Ivanišević · 2015
The New York court in ReDigi reiterated the general proposition under United States copyright law that exhaustion of distribution right („the first sale doctrine“) applies vis-à-vis tangible copies of a copyright work, but not if digital copies of the work are placed onto market. Nothing in the judgment suggests that distribution of digital copies of a computer program – a matter not examined by the court – would be an exception to the rule. The Court of Justice of the European Union (CJEU), in the UsedSoft case, ruled that distribution of digital copies of the computer program was subject to copyright exhaustion; it seems unlikely, however, that the CJEU would reach that same conclusion with respect to digital copies of other types of protected works. In the United States, the widely shared view that an apparent sale of a copy of a computer program in fact constitutes grant of licence pre-empts application of the first sale doctrine. The CJEU, in contrast, judged the purported licence to be a sale, thereby laying the basis for subsequent conclusion that the exhaustion rule applies. In both cases, the courts also recognized the right of reproduction as possibly infringed in the course of a „digital sale“ of the copy of a copyright work. The New York court concluded that infringement did occur, whereas the CJEU found that in the specific context the right of reproduction was not infringed, due to a narrow exception provided for in the Software Directive 2009/24. The New York court gave due consideration to extra-legal arguments in favour or against applicability of the first sale doctrine in the digital domain, but refrained from effectively assuming a legislator’s role; the CJEU has been criticized for doing exactly the opposite. Both in the U.S. and in the E.U., the debate about „digital exhaustion“ is, in fact, yet to develop.