DIGITAL EXHAUSTION IN THE EUROPEAN UNION

Sammanfattning: In the past, copyrighted works were distributed exclusively through physical means, while copyright law developed to bestow copyright holder a privilege to decide when and under what circumstances a work should be put into circulation. The first sale doctrine, however, limited that ability in so far as, once a product is sold, copyright owners can no longer control the flow of that particular product, benefiting consumers and society in several ways. Today, as distribution is increasingly shifting into digital, the application of the first sale doctrine is challenged. This work provides for an analysis of the first sale doctrine under EU law and the ECJ case law in matters of digital exhaustion. It is shown that many of the benefits of first sale stem from traditional understandings of what means to own a physical copy and when it comes to the digital environment, the first sale doctrine seems to be undermined, and so do its benefits. It is argued that there is still some room for exhaustion, despite the lack of clarity of the wording of the InfoSoc Directive and Software Directive and the absence from the ECJ to provide for a final interpretation. Further to the analysis, it is shown that the promotion of a right to access and a right to transfer digital copies is still possible, even though they may not be the right answer to the issue of exhaustion in a digital economy by virtue of how market has developed and consumers response to it.