tag:blogger.com,1999:blog-5574479.post1738999494718421996..comments2024-03-29T06:00:27.896+00:00Comments on The IPKat: BREAKING - Copyright exhaustion does not apply to digital goods other than software, Hamm Court of Appeal saysVerónica Rodríguez Arguijohttp://www.blogger.com/profile/05763207846940036921noreply@blogger.comBlogger5125tag:blogger.com,1999:blog-5574479.post-15387231124271342092014-06-18T11:36:06.134+01:002014-06-18T11:36:06.134+01:00UPDATE: the decision is now available here. The pr...UPDATE: the decision is now available here. The press release can be downloaded here. Who could provide the IPKat with English translations? Katpat(s) are up for grabs.Alberto Bellanhttps://www.blogger.com/profile/07713782540062346962noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-40863684368220450462014-06-17T13:23:12.347+01:002014-06-17T13:23:12.347+01:00Dear all,
Actually I think the missing of an equi...Dear all,<br /><br />Actually I think the missing of an equivalent of Art. 5.1 SWD in InfoSoc was one of the major points on which the OLG Hamm relied upon. It therefore held that the ‘technical operation’ as described in the Oracle decision cannot lawfully be performed. Yet in my personal opinion – given the convincing argumentation of the ECJ in Oracle, that downloaded IP-material should not be treated differently than hardcopies – I feel (& hope) that the ECJ would confirm their approach of Oracle if this or a similar case will be referred, especially given the latest development that the ECJ interprets earlier directives in the light of the later sui generis directives.<br /><br />BenBennoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-37603860614944321442014-06-16T14:54:49.477+01:002014-06-16T14:54:49.477+01:00Dear Javier,
Thank you for your comment.
In pr...Dear Javier, <br /><br />Thank you for your comment. <br /><br />In principle, one might argue that there is no particular reason for mp3 to be treated differently from software. They're both digital goods (considering them "services" is simply ridiculous). Moreover, assuming that exhaustion should prevail on merely private interests, there should be no ground in denying its application any time a substancial (although not declared) transfer of property occurs. <br /><br />The letter of law, however, sounds quite different in SW and InfoSoc Directives, and the CJEU took care to specify that the SWD and ONLY the SWD reflects EU legislator's intention to apply exhaustion to digital copies of software (re WCT, see para 60). <br /><br />Further, I reckon that consumers' use of software is rather different than other digital goods, as different might be the issues connected to their re-sale (copying an mp3 on 1,000 devices is not the same of copying software; software has a shorter life than songs or books, etc.). This might justify a different treatment. <br /><br />There are good reasons on both sides, and with these CJEU guys one never knows. <br /><br />AlbertoAlberto Bellanhttps://www.blogger.com/profile/07713782540062346962noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-2724454412400790612014-06-14T12:39:25.966+01:002014-06-14T12:39:25.966+01:00Hi Javier,
I think that much will also depend on...Hi Javier,<br /><br /> I think that much will also depend on the actual "special" nature of the Software Directive as compared to the InfoSoc Directive. This appears now to have been somehow strengthened by the CJEU in its decision in Case C-355/12 Nintendo. But who knows what the Court will say when given the opportunity to rule on exhaustion for digital subject-matter other than software! Perhaps some hints will be provided when the Art&Allposters decision is released. Eleonora Rosatihttps://www.blogger.com/profile/05629420303968805446noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-829890583211133882014-06-14T06:55:59.376+01:002014-06-14T06:55:59.376+01:00Alberto, I am not so sure that the CJEU will not a...Alberto, I am not so sure that the CJEU will not accept exhaustion of distribution right in connection with digital goods other than software. Whilst it is absolutely true that under Recital 29 of Copyright Directive, no exhaustion should be effected for Internet downloads, the CJEU also said in Usedsoft (see paragraph 52) that Art. 6.1 of WIPO Treaty 1996 must be interpreted as converting into "distribution" any act of "public communication" that involves a transfer of ownership. CJEU also referred to its Peek & Cloppenburg judgment in such regard. Therefore, it should be not excluded that a similar ruling may be provided by the CJEU in connection with digital goods other than software. However, an impediment that user might face is that he cannot rely on a limitation to the right of reproduction similar to the one provided in Article 5.1 of the Software Directive (e.g. it's doubtful whether such copy would be legitimized under the private copying exception). Therefore, an outcome similar to the one in the Redigi case in the US may finally result for those other digital goods. Javier Ramirez Iglesiasnoreply@blogger.com