Implementing a digital first sale doctrine: Comparative study of the E.U. and the U.S.A.
(Sprache: Englisch)
Consumption of copyright materials such as, books, music, games, has changed dramatically in the internet age. We no more consume them as tangible goods. Instead we consume them as digital goods, which have characteristics different from tangible goods. The...
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Consumption of copyright materials such as, books, music, games, has changed dramatically in the internet age. We no more consume them as tangible goods. Instead we consume them as digital goods, which have characteristics different from tangible goods. The first sale doctrine in copyright law has been applied to tangible copyright goods since it was codified in the United States of America s Copyright Act of 1909. But due to the difference in the method of consumption of copyright goods, it is hard to apply the doctrine to digital ones. The question whether it should be applied to digital goods gained prominence when Redigi, a second hand market place for digital copyright goods, was sued by Capitol Records Inc. for infringing its copyright. Is it appropriate to abrogate the doctrine when it comes to digital goods or whether the doctrine should be applied irrespective of the method of consumption, takes centre stage. There are divergent views to this debate. In the European Union, after the UsedSoft case, the view is generally more favourable towards the application of the doctrine to digital goods, whereas, in the United States of America the view is more restrictive. But what copyright needs is a harmony between the divergent views, more favourably towards the views of the European Union, since, there have been technological advancements that do replicate the transfer of tangible goods in the digital domain. The doctrine of first sale is necessary in copyright law, irrespective of the method of consumption, as it tends to achieve a dual purpose. The first is public benefit. This it achieves by allowing more people to have access to literature and art. The second is economic benefit. It increases the overall economic activity by creating a market for second hand goods. But what should be kept in mind is that digital goods do have characteristics that make them easy to copy and distribute, which increases piracy. But should the answer to the problem lie in
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abrogating the doctrine for digital goods or in technology itself, there will be a problem. This is because once the doctrine has been abrogated, it will be almost impossible to reintroduce it, if and when technology should change and there rises a need for the doctrine. But if you let the doctrine be as it is and let technology accommodate the doctrine then it is much safer.
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Chapter 3.1: Evolution of Copyright:In the days long gone, before the invention of the printing press, there was little need for copyright protection. Manuscripts were painstakingly written by hand. It included mostly of books and some documents. It must have taken months, sometimes even years to finish a work. Writing must not have been easy. The writing materials that I can think of haphazardly, are animal skin, cloth and wood. Paper must not have been used much as the demand for paper arose after the invention of the art of printing. The work produced would have been priced very highly and the only people able to afford it would have been noblemen. Therefore, literature was outside the grasp of ordinary people. In such a scenario, it can be inferred that copying a work would be unthinkable. Even if it were to be copied due to its intrinsic value, the cost and labour to reproduce it would make a person cautious before making a copy. Authors lacked any rights and had to be content with their paltry earnings.
All hail to Johannes Gutenberg for the invention of the printing press in the year 1448. As a matter of fact, printing was already in existence in Eastern Asia although Gutenberg refined the technology. Keeping the debate aside as to the origins of the printing press, it has been hailed as one of the most revolutionary technological advances of all times. It is because of it that so many of us enjoy literature and artistic work. Copies can be made at a fraction of time and cost. As with all technological advances, the sovereign is always wary about the harm that new technology poses. So it began to monopolise the printing business. Tis, birth of copyright law. The world s first national copyright law was the Statute of Anne passed in the year 1710 by the British Parliament. I will take the chance here of mentioning that the US copyright law evolved based on the English law on copyright. The authors for the very first time were given an opportunity to enrich
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themselves out of their intellectual creations. However, there is a gap of almost two and a half centuries after the printing press that the first copyright legislation came into being. That gap in time was necessary for the development of the legal concepts.
Since the printing press, we have revolutionised technology even further. We are able to record sounds and pictures on mediums such as tape and compact disc. We are already in the midst of the digital revolution and we are on the verge of moving towards the next technological revolution, whatever that might be. Copyright law has evolved to meet the problems of the digital era and will probably keep evolving to meet the challenges of new technology. This part is more worthy of discussion in the next section titled the present so we will leave it for now.
Chapter 3.2: Genesis of the first sale doctrine/rule of exhaustion:
This is basically a limitation to the right to distribute. We have already discussed what distribution rights are in relation to tangible as well as intangible goods. The doctrine was first codified in the US copyright act of 1909. What the doctrine basically states is that once a lawful copy of a copyright product is placed in the market, in other words, sold with the permission of the copyright owner, he exhausts his right to further distribute that particular copy. But that copy must be a lawful copy.
The doctrine was based on the English common law relating to the sale of real and personal property. Its existence can be dated to the 1894 case of Harrison v. Maynard, Merrill & Co. This case related to unbound leaves of books which were damaged by fire in a bindery. The bindery sold the leaves as waste. A second hand book seller later acquired those leaves, bound them up and sold them as books. The bindery brought an action against the second hand book seller to stop him from selling the books. The bindery s action failed. The doctrine was later affirmed in the 1908 case of Bobbs-Merrill,
Since the printing press, we have revolutionised technology even further. We are able to record sounds and pictures on mediums such as tape and compact disc. We are already in the midst of the digital revolution and we are on the verge of moving towards the next technological revolution, whatever that might be. Copyright law has evolved to meet the problems of the digital era and will probably keep evolving to meet the challenges of new technology. This part is more worthy of discussion in the next section titled the present so we will leave it for now.
Chapter 3.2: Genesis of the first sale doctrine/rule of exhaustion:
This is basically a limitation to the right to distribute. We have already discussed what distribution rights are in relation to tangible as well as intangible goods. The doctrine was first codified in the US copyright act of 1909. What the doctrine basically states is that once a lawful copy of a copyright product is placed in the market, in other words, sold with the permission of the copyright owner, he exhausts his right to further distribute that particular copy. But that copy must be a lawful copy.
The doctrine was based on the English common law relating to the sale of real and personal property. Its existence can be dated to the 1894 case of Harrison v. Maynard, Merrill & Co. This case related to unbound leaves of books which were damaged by fire in a bindery. The bindery sold the leaves as waste. A second hand book seller later acquired those leaves, bound them up and sold them as books. The bindery brought an action against the second hand book seller to stop him from selling the books. The bindery s action failed. The doctrine was later affirmed in the 1908 case of Bobbs-Merrill,
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Autoren-Porträt von Girish Agarwal
My journey as a student begins in a British boarding school, although adding the word British is inappropriate today. Then, India was under the British Raj and St. Paul s School, Darjeeling, located at the foothills of the Kanchenjunga, a place for the British aristocrats and India s Royal s. It was known at that time as Eton of the East. Much has changed since then because of the political turmoil in the region.
Bibliographische Angaben
- Autor: Girish Agarwal
- 2015, Erstauflage, 52 Seiten, Masse: 15,6 x 22,2 cm, Kartoniert (TB), Englisch
- Verlag: Anchor Academic Publishing
- ISBN-10: 3954893487
- ISBN-13: 9783954893485
Sprache:
Englisch
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