Digital Copies, Exhaustion, As Well As Blockchains: Lack Of Legal Clarity To Endure Get-Go Past Times Technological Advancement As Well As Evolving Consumption Patterns?

Digital copies, exhaustion, together with blockchains: lack of legal clarity to live on offset past times technological advancement together with evolving consumption patterns?

By Eleonora Rosati together with first published on the IPKat

"Buy digital": but are you lot truly buying to own?

Can you lot resell the books, CDs, together with DVDs that you lot are no longer interested inwards having? The answer to this enquiry is easy: usually, yes.

But what close the instance of ebooks, music tracks, together with films downloaded from the internet? Well, here, the enquiry is to a greater extent than hard together with - at to the lowest degree at the European Union aeroplane - does non create got a clear answer yet. The lawsuit is especially complex due to both practical together with legal reasons.

The next post tin live on accompanied by these slides I prepared for a recent lecture at Bocconi University inwards Milan.

Degradation (or lack thereof)

A perfect analogy betwixt physical together with digital copies of a move does non seem truly possible to live on drawn inwards the outset place. Unlike analogue/physical copies (eg a book), inwards regulation the digital re-create of a move is non plain of written report to whatever form of appreciable degradation. If you lot read the same ebook 5 times, the character of the re-create you lot create got remains substantially unaltered. However, tin you lot say the same close a physical re-create of a book?

Control (or lack thereof)

Another declaration that is sometimes advanced to highlight the difference betwixt analogue together with physical copies is that greater command tin live on exerted over the transmission of a physical copy. If you lot allowed someone to transfer his/her digital re-create of a work, how tin you lot brand certainly that this mortal would non simply create a novel re-create together with maintain his/her master copy one?

While this declaration may deal some truth inwards principle, reality is that anti-copying technologies create got been inwards house for years together with some (albeit ill-fated) second-hand digital marketplaces [eg ReDigi, which was at the centre of an interesting U.S. case back inwards 2013] have demonstrated that it is possible to allow the transfer of one's ain re-create without existent possibilities of duplication. Also latest developments (see below) suggest that the command declaration may live on short-lived.

Legal obstacles

Besides technical considerations the legislative framework appears (problematically) ambiguous, both inwards Europe together with the US. 

As readers volition know, the correct of distribution (which is relevant to the introduce discussion) is plain of written report to exhaustion, farther to the outset lawful sale of a copyright move or a re-create thereof. 

While for analogue/physical copies the concept of exhaustion is non hard to grasp (you purchase a mass at a bookshop - you lot perish the possessor of the re-create - you lot tin resell that copy), the same is hardly truthful inwards relation to digital copies. Essentially, the lawsuit is twofold, ie whether:

(1) There is e'er an actual 'sale' of a digital copy: fifty-fifty if nosotros come across 'buy' all the fourth dimension inwards relation to Amazon ebooks or iTunes tracks, the actual contract nosotros formally conclude past times 'buying' an ebook or a music file is a licence agreement, non a sale.

(2) The mortal who 'purchases'/'buys' a digital re-create e'er becomes the 'owner' of that copy.

The answer – at to the lowest degree formally – may live on inwards the negative inwards both cases.

The U.S. scenario

In relation to the US, it is unclear [the ReDigi decision contains some hints, but these are non decisive, every bit I suggested here], it remains unclear whether together with to what extent this conclusion tin live on extended to plant other than reckoner programs together with that autumn nether the ambit of the full general European Union copyright directive, ie the InfoSoc Directive.

In his here] in VOB, C-174/15 (an e-lending case) Advocate General (AG) Szpunar held the persuasion that the lawsuit remains unaddressed at the European Union level, together with that the 2015 CJEU determination in Allposters, C-419/13 [Katposts here] did non render a response to the enquiry whether Article iv of the InfoSoc Directive envisages digital exhaustion.

While this appears truthful from a formal standpoint (Allposters is a traditional – albeit odd - analogue case, together with has naught to practise amongst the digital world), my persuasion is that - if the CJEU was given a existent chance to address the lawsuit of digital exhaustion - in that location mightiness live on a difference from the path taken in UsedSoft. First, in Allposters the CJEU was pretty clear that exhaustion alone applies to the tangible back upwardly (corpus mechanicum) of a work, non the move itself. Secondly, although dismissing the thought that the reference had anything to practise amongst exhaustion, inwards its 2016 here] the CJEU appeared to recollect along lines similar to those used in Allposters when it suggested that exhaustion relates to the "physical medium" of a work.

Whether a digital re-create tin e'er create got a tangible back upwardly remains to live on seen …

What is new

Amidst all this uncertainty, the latest intelligence is that technological advancement mightiness trim back - if non withdraw altogether - technological concerns surrounding the possibility of digital exhaustion (particularly the lawsuit of dissimilar degrees of control).

The most recent installment is inwards fact that blockchain tracking technology [yes, the engineering originally invented to make bitcoin transactions safer] is beingness proposed every bit an help to brand ebooks increasingly akin to analogue/physical copies. Blockchain engineering allows inwards fact readers to 'own' an ebook together with 'borrow' it to others, give thank you lot to the possibility to rail this peculiar type of transaction.

The outset 'disintegrating e-book' has simply been placed on the market: you lot tin come across how it works here.

IFPI Global Music Report 2017

However

While technological arguments against allowing or denying digital exhaustion may perish increasingly weaker, the police push clit some digital exhaustion remains uncertain. In addition, at the minute it appears that the lawsuit of digital exhaustion is non truly purpose of whatever meaningful policy discussion, whether inwards the U.S. or EU.

This said, shifting consumer behaviours may ultimately brand addressing the lawsuit of digital exhaustion redundant, at to the lowest degree every bit regards certainly types of copyright content. There seems to live on inwards fact an increasing tendency towards consuming copyright content non past times agency of truly possessing (NOTE: ≠ owning) of a digital re-create (eg an cyberspace download) but rather through streaming content online. This appears for instance to live on the instance of music. In its latest Global Music Report, IFPI highlighted how streaming continues to grow, piece the number of downloads has been decreasing over time.

Overall, digital exhaustion mightiness perish i of those issues that the police push clit has failed to address clearly inwards a timely fashion but that ultimately mightiness live on offset past times technological advancement together with evolving consumption patterns. Whether this wait-and-see approach is desirable, however, is a dissimilar story …