Exhaustion of Copyright
in a Digital Environment
An analysis of the disposition capabilities
of the first acquirer of a copyright-protected digital work

Pre-doc project by
Simon Geiregat
Special Research Fund (BOF) | Ghent University

Supervised by
Prof. Dr. Reinhard Steennot (Ghent University – promoter)
Porf. Dr. Hendrik Vanhees (Ghent University – additional supervisor)
Prof. Dr. Marie-Christine Janssens (KU Leuven)

Research concluded on 31 March 2019
Doctoral thesis successfully defended on 28 May 2019

Only authors have the right to distribute their work or copies of it. However, after the first transfer of ownership, this right to control that copy's further distribution is said to be “exhausted”. Regarding material copies, most issues are cleared. Yet, how does exhaustion apply to digital copies? Can buyers freely dispose of their on-line purchased eBooks and MP3 files, like they can dispose of real books and CD's?
In Layman's Terms
The digital world gives rise to lots of challenges regarding copyright law. Many legal issues remain unsolved. Of particular interest notably are the questions on the exhaustion of the author's exclusive rights.
In a nutshell, the main issue can be summarized as follows. In principle only the author of a work has the right to distribute his work or a copy to the public. Only (s)he can for instance market a CD with a song or a book copy. However, after the first lawful transfer of ownership in the European Union, the author's distribution right is “exhausted”: (s)he can no longer control the further distribution of that copy within the EU. The first purchaser (buyer) and all next purchasers can thus either export that good to other EU member states or resell them to professionals or consumers.
As to “material” copies (or “hard” copies) like books or CDs, most exhaustion issues are cleared. The current research however intends to analyse whether such an exhaustion principle also plainly applies to digital copies that were “purchased” on line. Can buyers freely dispose of legally obtained eBooks, MP3 and movie files as well as cloud access accounts in the same way as they can dispose of a real, material book, CD or DVD?
Despite its major importance to consumers as well as enterprises, no clear answers on this “digital exhaustion” and the consequences of its (non)existence are available. Consumers are largely protected by the law; however, when it comes to copyright, it seems like authors' interests always prevail. Is this justified? How can both interests be better balanced?