Exhaustion refers to one of the limits of intellectual property (IP) rights, such as copyright. Once a product covered by an IP right has been marketed by the right owner or by others with the consent of the owner, the IP rights of commercial exploitation over this given product are said to be exhausted and can no longer be exercised by the owner.
Back in 2016, the CJEU examined the question of whether backup copies of software could be resold, following the exhaustion of the right of distribution pursuant to the judgment in C-128/11 UsedSoft. In C-166/15 Ranks (Microsoft), the Court ruled that, although the initial acquirer of software can resell that copy and his licence, he cannot…
Part 1 of this post discussed the legislative history and significance of the CJEU referral in Tom Kabinet. This part will illustrate content and implications of the three classificatory dichotomies, explain why EU copyright law needs digital exhaustion, and propose interpretative solutions for the CJEU to help with this, leveraging the occasion offered by the…
After years of contradictory decisions and obiter dicta, on April 2, 2019 the CJEU held the first hearing in Tom Kabinet (C-263/18), a Dutch referral that promises to solve once and for good the question of admissibility of digital exhaustion under Art. 4(2) InfoSoc. Against the legislative silence, Tom Kabinet puts the Court at a…
Introduction: digital exhaustion One of the main limitations to the right of distribution in European copyright law is the principle or rule of exhaustion. This rule, known as the first sale doctrine in US law, means that the right of distribution is exhausted by the first sale or other transfer of ownership of a copy…
As the jurisprudence of the European Court of Justice and ongoing discussions in the EU legislature illustrate, the economic rights granted to right holders under EU copyright law – the rights of reproduction, communication to the public and distribution – have become increasingly unpredictable. While the right of reproduction already covers almost every direct or…
This post was first published on the Kluwer Trademark Blog In a judgement of April 2018, the Regional Court of Hamburg has ruled on the use of original advertising material by non-authorized dealers and on how trademark law can bypass copyright law (308 O 231/16). The plaintiff manufactures saddle bags and other high quality cycling…
Following a referendum on 23 June 2016, 51.9% of UK voters said “yes” to Brexit. British Prime Minister Theresa May revealed earlier this month that Article 50 TEU will be triggered by March 2017, marking the beginning of the formal withdrawal process. It is hard to predict the impact of Brexit on the current copyright…
Lawful acquirers of computer programs cannot resell back-up copies of the programs. This is according to the Court of Justice of the European Union (CJEU) in case C-166/15 (Ranks/Vasiļevičs v. Finanšu un ekonomisko noziegumu izmeklēšanas prokoratūra/Microsoft Corp). The circumstances of the case were that two persons sold, on an online marketplace, used copies of computer…
The Court of Appeal ruled that the resale of used e-books by Tom Kabinet was permitted based on the CJEU’s UsedSoft ruling, although that case dealt with the sale of second-hand software. Nevertheless, the Court agreed with NUV that Tom Kabinet, as an internet intermediary, facilitates the resale of illegal content by the absence of…
On 20 January, the Dutch court of appeals (Hof Amsterdam) gave its preliminary ruling in the case of Tom Kabinet. In this ruling the court had to consider whether the CJEU UsedSoft rationale applies to eBooks as well. Without giving a final judgment, the court indicated that it considers it quite likely that exhaustion of rights,…
