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Caterina Sganga, A Plea for Digital Exhaustion in EU Copyright Law, 9 (2019) JIPITEC 211 para 1.
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%0 Journal Article %T A Plea for Digital Exhaustion in EU Copyright Law %A Sganga, Caterina %J JIPITEC %D 2019 %V 9 %N 3 %@ 2190-3387 %F sganga2019 %X With the Dutch referral of the Tom Kabinet case (C-263/18) in July 2017, the CJEU will soon have its final say on the admissibility of digital exhaustion under Art. 4(2) InfoSoc. Until now, years of national decisions and the CJEU’s obiter dicta have provided a patchwork of inconsistent answers, and seemingly rejected the extension of the principle to digital works upon a strict literal interpretation of EU and international sources. Yet, the changed characteristics of digital markets have outdated the InfoSoc Directive and the classificatory dichotomies (sale vs li-cense, distribution vs communication to the public, good vs service) on which the boundaries of exhaustion have been drawn. At the same time, the exclusion of digital exhaustion has tilted the balance between copyright and the protection of competition, secondary innovation, fundamental freedoms and other conflicting fundamental rights, while the direct and indirect rulings on the matter have de-parted from the principles developed in the earlier CJEU’s case law on Communi-ty exhaustion and caused systematic and teleological inconsistencies in the judi-cial development of EU copyright. Building on these premises, and on the basis of a set of legal and economic arguments, this paper advocates for the introduc-tion of a general principle of digital exhaustion in EU copyright law and, awaiting an unlikely legislative intervention, it proposes two routes to achieve its judicial recognition: one uses a contextual/teleological interpretation to maintain the effec-tiveness of Article 4(2) InfoSoc; the other theorizes the possibility of a claim of invalidity of the provision under Article 52(1) CFREU, for disproportionate viola-tion of Articles 7, 16 and 17 CFREU. %L 340 %K Article 4 InfoSoc %K CFREU %K CJEU %K Digital exhaustion %K EU copyright %K Erschöpfungsgrundsatz %K Tom Kabinet %K UsedSoft %K Verbreitungsrecht %K WCT %K copyright balance %K e-books %K exhaustion %K fundamental rights %U http://nbn-resolving.de/urn:nbn:de:0009-29-48023 %P 211-239Download
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@Article{sganga2019,
author = "Sganga, Caterina",
title = "A Plea for Digital Exhaustion in EU Copyright Law",
journal = "JIPITEC",
year = "2019",
volume = "9",
number = "3",
pages = "211--239",
keywords = "Article 4 InfoSoc; CFREU; CJEU; Digital exhaustion; EU copyright; Ersch{\"o}pfungsgrundsatz; Tom Kabinet; UsedSoft; Verbreitungsrecht; WCT; copyright balance; e-books; exhaustion; fundamental rights",
abstract = "With the Dutch referral of the Tom Kabinet case (C-263/18) in July 2017, the CJEU will soon have its final say on the admissibility of digital exhaustion under Art. 4(2) InfoSoc. Until now, years of national decisions and the CJEU's obiter dicta have provided a patchwork of inconsistent answers, and seemingly rejected the extension of the principle to digital works upon a strict literal interpretation of EU and international sources. Yet, the changed characteristics of digital markets have outdated the InfoSoc Directive and the classificatory dichotomies (sale vs li-cense, distribution vs communication to the public, good vs service) on which the boundaries of exhaustion have been drawn. At the same time, the exclusion of digital exhaustion has tilted the balance between copyright and the protection of competition, secondary innovation, fundamental freedoms and other conflicting fundamental rights, while the direct and indirect rulings on the matter have de-parted from the principles developed in the earlier CJEU's case law on Communi-ty exhaustion and caused systematic and teleological inconsistencies in the judi-cial development of EU copyright. Building on these premises, and on the basis of a set of legal and economic arguments, this paper advocates for the introduc-tion of a general principle of digital exhaustion in EU copyright law and, awaiting an unlikely legislative intervention, it proposes two routes to achieve its judicial recognition: one uses a contextual/teleological interpretation to maintain the effec-tiveness of Article 4(2) InfoSoc; the other theorizes the possibility of a claim of invalidity of the provision under Article 52(1) CFREU, for disproportionate viola-tion of Articles 7, 16 and 17 CFREU.",
issn = "2190-3387",
url = "http://nbn-resolving.de/urn:nbn:de:0009-29-48023"
}
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RIS
TY - JOUR AU - Sganga, Caterina PY - 2019 DA - 2019// TI - A Plea for Digital Exhaustion in EU Copyright Law JO - JIPITEC SP - 211 EP - 239 VL - 9 IS - 3 KW - Article 4 InfoSoc KW - CFREU KW - CJEU KW - Digital exhaustion KW - EU copyright KW - Erschöpfungsgrundsatz KW - Tom Kabinet KW - UsedSoft KW - Verbreitungsrecht KW - WCT KW - copyright balance KW - e-books KW - exhaustion KW - fundamental rights AB - With the Dutch referral of the Tom Kabinet case (C-263/18) in July 2017, the CJEU will soon have its final say on the admissibility of digital exhaustion under Art. 4(2) InfoSoc. Until now, years of national decisions and the CJEU’s obiter dicta have provided a patchwork of inconsistent answers, and seemingly rejected the extension of the principle to digital works upon a strict literal interpretation of EU and international sources. Yet, the changed characteristics of digital markets have outdated the InfoSoc Directive and the classificatory dichotomies (sale vs li-cense, distribution vs communication to the public, good vs service) on which the boundaries of exhaustion have been drawn. At the same time, the exclusion of digital exhaustion has tilted the balance between copyright and the protection of competition, secondary innovation, fundamental freedoms and other conflicting fundamental rights, while the direct and indirect rulings on the matter have de-parted from the principles developed in the earlier CJEU’s case law on Communi-ty exhaustion and caused systematic and teleological inconsistencies in the judi-cial development of EU copyright. Building on these premises, and on the basis of a set of legal and economic arguments, this paper advocates for the introduc-tion of a general principle of digital exhaustion in EU copyright law and, awaiting an unlikely legislative intervention, it proposes two routes to achieve its judicial recognition: one uses a contextual/teleological interpretation to maintain the effec-tiveness of Article 4(2) InfoSoc; the other theorizes the possibility of a claim of invalidity of the provision under Article 52(1) CFREU, for disproportionate viola-tion of Articles 7, 16 and 17 CFREU. SN - 2190-3387 UR - http://nbn-resolving.de/urn:nbn:de:0009-29-48023 ID - sganga2019 ER -Download
Wordbib
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ISI
PT Journal AU Sganga, C TI A Plea for Digital Exhaustion in EU Copyright Law SO JIPITEC PY 2019 BP 211 EP 239 VL 9 IS 3 DE Article 4 InfoSoc; CFREU; CJEU; Digital exhaustion; EU copyright; Erschöpfungsgrundsatz; Tom Kabinet; UsedSoft; Verbreitungsrecht; WCT; copyright balance; e-books; exhaustion; fundamental rights AB With the Dutch referral of the Tom Kabinet case (C-263/18) in July 2017, the CJEU will soon have its final say on the admissibility of digital exhaustion under Art. 4(2) InfoSoc. Until now, years of national decisions and the CJEU’s obiter dicta have provided a patchwork of inconsistent answers, and seemingly rejected the extension of the principle to digital works upon a strict literal interpretation of EU and international sources. Yet, the changed characteristics of digital markets have outdated the InfoSoc Directive and the classificatory dichotomies (sale vs li-cense, distribution vs communication to the public, good vs service) on which the boundaries of exhaustion have been drawn. At the same time, the exclusion of digital exhaustion has tilted the balance between copyright and the protection of competition, secondary innovation, fundamental freedoms and other conflicting fundamental rights, while the direct and indirect rulings on the matter have de-parted from the principles developed in the earlier CJEU’s case law on Communi-ty exhaustion and caused systematic and teleological inconsistencies in the judi-cial development of EU copyright. Building on these premises, and on the basis of a set of legal and economic arguments, this paper advocates for the introduc-tion of a general principle of digital exhaustion in EU copyright law and, awaiting an unlikely legislative intervention, it proposes two routes to achieve its judicial recognition: one uses a contextual/teleological interpretation to maintain the effec-tiveness of Article 4(2) InfoSoc; the other theorizes the possibility of a claim of invalidity of the provision under Article 52(1) CFREU, for disproportionate viola-tion of Articles 7, 16 and 17 CFREU. ERDownload
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<abstract>With the Dutch referral of the Tom Kabinet case (C-263/18) in July 2017, the CJEU will soon have its final say on the admissibility of digital exhaustion under Art. 4(2) InfoSoc. Until now, years of national decisions and the CJEU’s obiter dicta have provided a patchwork of inconsistent answers, and seemingly rejected the extension of the principle to digital works upon a strict literal interpretation of EU and international sources. Yet, the changed characteristics of digital markets have outdated the InfoSoc Directive and the classificatory dichotomies (sale vs li-cense, distribution vs communication to the public, good vs service) on which the boundaries of exhaustion have been drawn. At the same time, the exclusion of digital exhaustion has tilted the balance between copyright and the protection of competition, secondary innovation, fundamental freedoms and other conflicting fundamental rights, while the direct and indirect rulings on the matter have de-parted from the principles developed in the earlier CJEU’s case law on Communi-ty exhaustion and caused systematic and teleological inconsistencies in the judi-cial development of EU copyright. Building on these premises, and on the basis of a set of legal and economic arguments, this paper advocates for the introduc-tion of a general principle of digital exhaustion in EU copyright law and, awaiting an unlikely legislative intervention, it proposes two routes to achieve its judicial recognition: one uses a contextual/teleological interpretation to maintain the effec-tiveness of Article 4(2) InfoSoc; the other theorizes the possibility of a claim of invalidity of the provision under Article 52(1) CFREU, for disproportionate viola-tion of Articles 7, 16 and 17 CFREU.</abstract>
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Full Metadata
| Bibliographic Citation | Journal of intellectual property, information technology and electronic commerce law 9 (2019) 3 |
|---|---|
| Title |
A Plea for Digital Exhaustion in EU Copyright Law (eng) |
| Author | Caterina Sganga |
| Language | eng |
| Abstract | With the Dutch referral of the Tom Kabinet case (C-263/18) in July 2017, the CJEU will soon have its final say on the admissibility of digital exhaustion under Art. 4(2) InfoSoc. Until now, years of national decisions and the CJEU’s obiter dicta have provided a patchwork of inconsistent answers, and seemingly rejected the extension of the principle to digital works upon a strict literal interpretation of EU and international sources. Yet, the changed characteristics of digital markets have outdated the InfoSoc Directive and the classificatory dichotomies (sale vs li-cense, distribution vs communication to the public, good vs service) on which the boundaries of exhaustion have been drawn. At the same time, the exclusion of digital exhaustion has tilted the balance between copyright and the protection of competition, secondary innovation, fundamental freedoms and other conflicting fundamental rights, while the direct and indirect rulings on the matter have de-parted from the principles developed in the earlier CJEU’s case law on Communi-ty exhaustion and caused systematic and teleological inconsistencies in the judi-cial development of EU copyright. Building on these premises, and on the basis of a set of legal and economic arguments, this paper advocates for the introduc-tion of a general principle of digital exhaustion in EU copyright law and, awaiting an unlikely legislative intervention, it proposes two routes to achieve its judicial recognition: one uses a contextual/teleological interpretation to maintain the effec-tiveness of Article 4(2) InfoSoc; the other theorizes the possibility of a claim of invalidity of the provision under Article 52(1) CFREU, for disproportionate viola-tion of Articles 7, 16 and 17 CFREU. |
| Subject | Article 4 InfoSoc, CFREU, CJEU, Digital exhaustion, EU copyright, Erschöpfungsgrundsatz, Tom Kabinet, UsedSoft, Verbreitungsrecht, WCT, copyright balance, e-books, exhaustion, fundamental rights |
| DDC | 340 |
| Rights | DPPL |
| URN: | urn:nbn:de:0009-29-48023 |
