Dr. Eleonora Rosati, lecturer in intellectual property law at the University of Southampton, a regular contributor to The 1709 Blog and IPKat blogs, has recently published a new article in the Journal of Intellectual Property Law & Practice, “Online Copyright Exhaustion in a Post-Allposters World”.
Article 4(2) of Directive 2001/29 (“InfoSoc Directive”) provides that the authorised first sale of a work within the territory of the EU exhausts the right of the copyright owner to control any subsequent distribution of the work in question. The Court of Justice of the European Union (CJEU) had been asked to clarify in C-419/13, Art & Allposters International BV v. Stichting Pictoright, whether this rule also applies to works that, following their authorised first sale, are subject to an alteration of their mediums and are then re-marketed in this new form. The CJEU referred to both Recital 28 in the preamble to the InfoSoc Directive and Article 6 of the WIPO Copyright Treaty, including the Agreed Statement on Articles 6 and 7, to hold the view that exhaustion of the right of distribution only applies to the tangible copy of a work. The author concludes that, at the EU level, whether the law should – or should not – allow for digital exhaustion is due to remain for some time a matter for the judiciary alone.
The article is available here.