Exhaustion principle

from Wikipedia, the free encyclopedia

The exhaustion principle is a legal principle from intellectual property law . Rights that are subject to exhaustion, "use" is, usually the protected object legally for the first time once placed on the market was. The protection can then no longer be claimed. In addition to placing on the market, there are usually other conditions that differ depending on the legal area and legal system. The reference object of the principle of exhaustion is always a specific object : For example, German patent law is entirely subject to the principle of exhaustion - the lawful placing on the market of a copy of a machine protected by patent only leads to the expiry of patent rights on this specific copy; other specimens must be considered independently.

The principle of exhaustion is very important for the free movement of goods . In addition to patent law, other intellectual property rights are also largely subject to exhaustion, such as claims from trademark and design law . Copyright knows the exhaustion principle for distribution right.

Depending on which location the exhaustion requirements are based on, one can choose between international exhaustion (where meeting the exhaustion requirements in any given country results in domestic law being exhausted), regional exhaustion (where meeting the exhaustion requirements in a certain region leads to domestic law being exhausted) and national or domestic exhaustion (whereby only fulfilling the exhaustion requirements domestically leads to exhaustion).

National regulations

Germany

Patent law

According to the German Patent Act , the rights granted in relation to a patent object that embodies the inventive concept expire as soon as the object has been placed on the domestic market with the consent of the patent owner. A patent holder can control the initial sale, but not downstream uses. The prevailing literary opinion sees the exhaustion principle as a content and limitation of patent law. The exhaustion effect for products is always object-related, i.e. it only applies to the specific object that was placed on the market with the consent of the person entitled.

The principle of exhaustion under patent law is not legally written down, but has long been recognized in case law and literature. The person who cites it is subject to the burden of presentation and evidence with regard to the occurrence of exhaustion. A purely national exhaustion (i.e. exhaustion effect only through domestic marketing) is no longer permissible in the course of European integration with the aim of realizing a uniform internal market ( European internal market ) (Art. 30 TFEU). However, according to the prevailing opinion, placing on the market in a third country outside the EEA does not lead to exhaustion, so that the importation of a patent subject cannot take place without using the domestic patent, even if the placing on the market abroad has been carried out by a third party with the consent of the patent holder.

The economic justification of the exhaustion principle is based on the basic idea that patent law grants state-protected monopoly rights. The right holder has regularly invested a lot of time and money to generate the protected information - the protective right is intended to ensure that he receives the monopoly proceeds from the sale of the patented objects. However, this protective purpose is sufficient if the right holder has brought the object into circulation for a fee. His further powers over the specific matter - not over the entire protected information - are thus exhausted. In addition, one can argue with the position of intellectual property rights in the legal system: The exhaustion principle functions as a kind of balancing instrument between the interests of the patent owner (who makes a profit in the course of the initial sale), the interests of the acquirer (who usually acquires property rights) and interests the general public in the free movement of goods.

copyright

scope of application

German copyright law applies the principle of exhaustion - exclusively - in relation to the right of distribution ( § 17 UrhG). This concerns the right “to offer the original or copies of the work to the public or to bring it into circulation” ( Section 17 (1) UrhG); it is part of the bundle of exploitation rights that are exclusively granted to the author ( § 15 UrhG). Unlike the other exploitation rights, however, it is subject to exhaustion:

Section 17 (2) UrhG
"If the original or copies of the work have been sold by way of sale with the consent of the person authorized to distribute them in the European Union or another signatory state to the Agreement on the European Economic Area, their further distribution is permitted with the exception of rental."

This principle of Community-wide exhaustion is explicitly taken up again in Section 69c No. 3 UrhG within the framework of the special provisions for computer programs. The distribution right to computer programs and their copies provided there is also limited to the extent that the distribution right to a copy is exhausted as soon as it is marketed in the EEA by way of sale. The two exhaustion barriers in Section 17 (2) UrhG and Section 69c No. 3 Sentence 2 UrhG are therefore essentially the same in terms of their content. The exhaustion principle applies to protected services without work quality ( performance rights ) that grant a right of distribution, in a corresponding manner.

The interpretation of the exhaustion principle in relation to the right of distribution is fully harmonized in the European Union by Art. 4 Para. 2 InfoSoc-RL (see below, section “ European Union ”). German copyright law does not recognize international exhaustion, i.e. placing it on the market outside the European Economic Area is harmless. There is also no general exhaustion principle that extends to other exploitation rights besides the distribution right. For the right of communication to the public, such an interpretation would in particular also conflict with Union law.

A prominent application of the exhaustion principle was the BGH judgment of July 6, 2000 (Az. I ZR 244/97), which allowed dealers to sell OEM versions of Microsoft Windows without hardware. Microsoft has had digital licenses since Windows 10, which systematically circumvent this BGH judgment.

History and justification

Since the copyright law came into force in 1966, the exhaustion principle has been legally codified in Section 17 (2) as a restriction on the right of distribution. Previously there was no corresponding provision; however, the Reichsgericht recognized in 1906 that it was not possible for the author to prevent the resale of a copy of the work that he or another authorized person had previously brought into circulation on the basis of his exclusive right of distribution (Section 11 LUG). Before the decision of the Imperial Court of Justice, the opposite view was also taken in the literature, which saw an “inexhaustible” right of distribution as a “welcome weapon against price slingshots in the book trade”. According to this view - categorized by Gellner under the concept of the monopoly theory - the right of distribution grants an absolute monopoly right “in such a way that only [the authors and publishers] and no one else and under no circumstances can commercially dispose of a copy unless he had obtained a corresponding authorization from the person entitled ”. In the German-speaking literature, Josef Kohler , who formulated the principle of exhaustion in his advocacy of a de lege ferenda distribution law as early as 1880 , is considered to be his spiritual father.

According to the predominant contemporary literary opinion, the exhaustive right of distribution finds its dogmatic justification in a combination of reward and traffic protection theory. The reward theory sees in the spread that is subject to exhaustion the consistent continuation of the copyright compensation idea, according to which the author should be given the opportunity to benefit financially from his work by means of appropriate defense claims. According to this view, after it has been placed on the market there is no longer any need for further control of the dissemination of works: the right has therefore been consumed. It is affirmed that the author, with his control over the placing on the market, can already raise claims for remuneration, which also cover the further stages of the distribution chain. From the point of view of traffic protection theory, the exhaustion principle also serves to prevent greater uncertainty at downstream levels of distribution. If the author kept control over every act of dissemination of his work, there would be the risk that “in long chains of dissemination acts, an intermediate link is illegal and thus all subsequent acts of dissemination also violate copyright”. (The Copyright Act does not recognize a bona fide acquisition of specific copyright authorizations: Nobody can effectively acquire rights from another that he does not have himself. Anyone who carries out a downstream act of distribution - for example the owner of a book who wants to resell it - will therefore demands that the entire previous license chain be checked for loopholes; otherwise he risks having used the work without the required right of use and having committed a copyright infringement.) More broadly, the opinion is that the exhaustion of the distribution right serves the purpose of ensuring the free movement of goods (Traffic safety theory). Accordingly, the BGH sees the free movement of goods without exhaustion "hindered in an unbearable manner".

According to the prevailing literary opinion, the principle of exhaustion presents itself in its legal nature as a content-related restriction of the right of distribution. Nonetheless, Stieper wants to attribute it constructively to the limitations of copyright law .

Requirements and effect

According to the wording of the law, the workpiece must have been “brought into circulation by way of sale” so that the exhaustion effect occurs. This means in particular that placing on the market by renting or lending does not lead to exhaustion. At the same time, "sale" refers not only to the sale in the sense of civil law ( §§ 433 ff. BGB), but according to the case law of the Federal Court of Justice usually includes every transfer or sale of property without affecting the character of the underlying causal transaction (purchase, exchange , gift , etc.). In contrast, the (inadmissible) affixing of graffiti art on the east side of the Berlin Wall does not constitute an exhaustive sale within the meaning of Section 17 (2) UrhG.

The principle of exhaustion only ever unfolds its effect on the workpieces that are specifically placed on the market, but not also on other copies of the work. If, for example, a book is sold by a publisher to a bookstore, the only consequence of this is that the redistribution of this specific copy (i.e. its sale to end customers) can no longer be controlled; the publisher is free to make use of its right of distribution for all further copies of the book. The burden of presentation and proof for the occurrence of exhaustion always falls on the person who invokes it.

Switzerland

Patent law

In the 1999 Kodak decision, the Swiss Federal Supreme Court decided in favor of the national exhaustion of patent rights. With the revision of the Federal Act on Invention Patents (PatG; SR 232.14), the principle of regional exhaustion in the EEA was unilaterally adopted in the new Article 9a. Article 9a, Paragraph 5 provides a single exception for goods whose price is set by the state. The principle of national exhaustion still applies to these. The revised law has been in force since July 1, 2009.

United States

copyright

In American law, the principle of exhaustion under the term of the first-sale doctrine (for example: " first-sale doctrine ") is common. Under Section 109 ( 17 USC § 109 ) of the Copyright Act, the owner of a lawfully made copy or a person authorized by the same may sell or otherwise dispose of that copy without permission from the author. For the applicability of this provision, as in German law, it is irrelevant how the owner acquired ownership (sale, donation, etc.); the term first-sale doctrine is therefore misleading. The exhaustion only affects the specific workpiece, so it is irrelevant whether any other workpiece has already been sold. Whether the author was adequately remunerated for the first sale is irrelevant for the occurrence of the exhaustion effect. The first-sale doctrine is systematically an objection (affirmative action) , so that the person who invokes it (as the defendant) is subject to the burden of proof with regard to ownership of a lawfully produced copy. An appeal to the exhaustion that has occurred is also ruled out if the (secondary) seller is unaware of the illegal manufacture of the workpiece he has acquired.

The principle of exhaustion originally found its way into American copyright law through case law. In Bobbs-Merrill Co. v. Straus had the Supreme Court in 1908 to rule on the action brought by a publisher who wanted to prohibit a bookseller from selling a book from his program for less than one US dollar; otherwise he saw his copyright infringement on the work. The Supreme Court dismissed this action following a series of subjudicial jurisprudence . With the first sale, the rights holder “exercised his right to sell”; the possibility of controlling downstream sales processes would grant him a right that was not provided for in the law and that would unduly expand the scope of the first-sale doctrine with a view to the legislative intention. This judiciary principle was codified only a year later in the new Copyright Act [1909], which states that “nothing in this Act shall be construed as prohibiting, preventing, or preventing the distribution of any copy of a copyrighted work that has been lawfully obtained to restrict ".

The handling of cases with a foreign connection is controversial. In the decision of Quality King Distributors, Inc. v. L'anza Research Int'l, Inc. , the Supreme Court commented on the basis of the claim against the unintentional (re-) importation of workpieces that were previously manufactured and exported in the USA. According to 17 USC § 602 (a) there is a violation of distribution rights if a workpiece acquired abroad is imported into the United States without the authorization of the author. The Supreme Court found that the author could no longer rely on the principle of exhaustion if he had previously legally produced the copies in question and sold them abroad. This is of practical importance in particular for manufacturers who sell their goods at different prices in Germany and abroad (so-called spatial price differentiation); they cannot take action against dealers who buy up the products in question on a “cheap” market and then re-introduce them cheaply into the “expensive” market of the country of manufacture, at least not from a copyright point of view.

In Kirtsaeng v. John Wiley & Sons, Inc. , the Supreme Court ruled in 2013 that the right of distribution would be exhausted even if the copy was lawfully made abroad and later imported into the United States. The copyright first-sale doctrine thus implements the principle of international exhaustion. This must also be seen against the background that section 109 - in contrast to most other legal systems - is not linked to "placing on the market", but rather to manufacturing ("made"): a purely national interpretation would therefore be feared by the Supreme Court had drastic consequences for domestic trade in products manufactured abroad. For example, the decision refers several times to the example of a new car made in Japan that is to be acquired by an American and then sold on as a used car after a while. If it is assumed that the distribution right has not yet been exhausted at this point in time, the court said that the approval of the vehicle manufacturer might have to be obtained, which would have drastic consequences for the free movement of goods. This problem does not arise in countries that are linked to placing on the market instead of manufacturing, because placing on the domestic market takes place when the new car is imported.

European Union

copyright

Legal bases

The Directive 2001/29 / EC on the harmonization of certain aspects of copyright and related rights in the information society (InfoSoc Directive) addresses the copyright exhaustion in two places. On the one hand, it prohibits member states from implementing an exhaustion regime with regard to certain rights. This particularly affects the right of the author, guaranteed in the InfoSoc-RL, to "wired or wireless public reproduction" of his works "including making them available to the public [...] in such a way that they are members of the public from places and at times of their choice are accessible ”to decide. In addition to the author with regard to his works, the directive also grants the same right to some other addressees who are listed in Art. 3 (2) InfoSoc-RL , for example the phonogram manufacturer with regard to his phonogram. In all of the cases mentioned, the right of reproduction may expressly “not be exhausted with the acts of communication to the public or making available to the public” (Art. 3 Para. 3 InfoSoc-RL ). If, for example, a sound carrier is legally played on the radio and thus reproduced publicly, or if a poem is legally posted on the freely accessible Internet, the sound carrier manufacturer or the poet may not expire any reproduction rights. This “prohibition of exhaustion” has a rather clarifying character; the idea that the right of reproduction can never be applied again after the first reproduction would ultimately undermine the protective purpose of this right and therefore appears remote.

On the other hand, the InfoSoc guideline stipulates that the member states must guarantee a distribution right, that is, an exclusive right “with regard to the original of their works or copies”, “distribution to the public in any form by sale or otherwise Way to allow or forbid ”(Art. 4 Para. 1 InfoSoc-RL ). With regard to this distribution right, exhaustion is admittedly permissible in principle, but the European legislator sets these limits:

Art. 4 para. 2 InfoSoc-RL
"The distribution right in the community in relation to the original or copies of a work is only exhausted if the first sale of this object or another initial transfer of ownership in the community is carried out by the right holder or with his consent."

Directive 2009/24 / EC on the legal protection of computer programs (Computer Program Directive) regulates exhaustion for the distribution of computer programs .

Art. 4 Para. 2 Computer Program Directive
“With the first sale of a copy of the program in the Community by the right holder or with his consent, the right to distribution of this copy in the Community is exhausted; excluded from this, however, is the right to control the subletting of the program or a copy thereof. "

The same regulation was already found in Directive 91/250 / EEC on the legal protection of computer programs (1991).

Case law of the ECJ

In UsedSoft vs. Oracle had the European Court of Justice (ECJ) to decide on the following constellation: The software company Oracle, as the owner of the rights to a computer program, offered a version of this program for download on its website. In order to make the copy of the program with technical protection measures usable, the customer had to conclude a license agreement with Oracle . Oracle proceeded in such a way that it only sold “package licenses”; the smallest license package entitles 25 users to install and use the program on their computer, whereby the licensee "exclusively for [his] internal business purposes" has a "perpetual, non-exclusive, non-assignable and royalty-free right to use everything that Oracle develops and [him] on the basis of this contract ”, was granted. UsedSoft , a company specializing in trading in program licenses, acquired such usage licenses or parts thereof from customers of Oracle if the licenses originally acquired were for a number of users that exceeded the needs of the first purchaser. UsedSoft then sold the license keys received in this way to its own customers. The company alleged that Oracle's distribution rights had already been exhausted by their first sale. The ECJ followed this view; A sale within the meaning of Art. 4 Para. 2 Computer Program Directive also exists if the first purchaser has been granted an unlimited right of use for a fee and the software is made available to him by downloading. The exhaustion affects not only software that is (further) distributed in physical form on data carriers, but also software that comes into traffic by means of downloading from the Internet. The online transmission corresponds functionally to the handing over of a physical data carrier, so that an interpretation of Art. 4 Para. 2 Computer Program Directive in the light of the principle of equal treatment suggests this result. The decision by which the ECJ postulated “online exhaustion” for computer programs was and is controversial in the literature.

This is differentiated from the case that a software user purchases a physical copy of the program (e.g. CD-ROM) with a license for unlimited use, makes a backup copy of it and sells it to a third party after the original copy has become unusable (destruction, loss). So the exhaustion relates only to the original disk. This may be resold without consent using the exhaustion principle, provided that all other (backup) copies in possession are destroyed. However, if the original data carrier becomes unusable, the previously created backup copy may only be sold with the consent of the rights holder.

The case law issued on the Computer Program Directive gave rise to intense speculation about how the ECJ would assess the exhaustion to be assessed according to the InfoSoc Directive for other types of work, especially since the ECJ in UsedSoft expressly emphasized that the computer program Directive, which is relevant to the decision, enjoys a lex specialis Priority over the InfoSoc Directive. In Allposters vs. Pictoright , the ECJ had to rule on the action of a distributor of art reproductions. He sold reproductions - with the consent of the owner of the rights to the respective motif - in the form of posters. In addition, Allposters also transferred the reproductions from paper to canvas using a chemical process and also offered them - in this case without the permission of the rights holder. Allposters based this approach, among other things, on the fact that the rights holders' right to distribution had already been exhausted with the legitimate placing of the posters on the market, so that the collecting society Pictoright had no further defense claims. The ECJ countered this by firstly stating that the exhaustion of the distribution right from Article 4, Paragraph 2 of the InfoSoc Directive does not apply to the intellectual creation of the author, but to the object that embodies a protected work or its reproduction. Based on this, he determined that a new object had been created by transferring it to canvas, so that Allposters could not refer to the exhaustive effect of placing it on the market in the form of the poster; The decisive factor here is namely "whether the changed item as such is, viewed as a whole, materially the item that was placed on the market with the consent of the rights holder".

In December 2019, the ECJ ruled in the Tom Kabinet case (C-263/18) that the exhaustion principle is not applicable to e-books and other types of work under the EU Copyright Directive. Accordingly, the purchase of an e-book is not a matter of buying a copy, but a license agreement in the form of public reproduction. Thus, both lending and leasing of e-books as well as any resale without the consent of the rights holder are prohibited. Only for software does the previous case law remain, because its acquisition is not treated according to the Copyright Directive, but is regulated by special law by the Computer Program Directive.

Convention Law

copyright

WIPO treaties

Article 6 (1) of the WIPO Copyright Treaty (WCT) of December 20, 1996 guarantees the exclusive right of authors of works of literature and art to allow the originals and copies of their works to be made available to the public through sale or other transfer of ownership be made. Paragraph 2 makes it clear for the national regulations of such a distribution right that

"[D] his contract [...] does not affect the freedom of the contracting parties to determine, if applicable, the conditions under which the right under paragraph 1 is applicable after the first sale of the original or a copy or the first other transfer of ownership with the permission of the author exhausted."

The terms “original” and “copy” refer to the mutually agreed declarations exclusively to copies that can be placed on the market as physical objects. Historically, the question of exhaustion was the central point of contention in connection with the broadly supported inclusion of a distribution right in the WCT; Art. 6 para. 2 was ultimately the result of long discussions about numerous text proposals by the state representatives. Sometimes it was suggested, for example, not to deal with exhaustion at all; other states, on the other hand, advocated an express ban on international exhaustion.

Art. 6 (2) expressly leaves it to the contracting parties to decide whether they provide for an exhaustion principle for the distribution right and, if they do so, which format it should follow, e.g. whether the distribution right is exhausted nationally, regionally or internationally. The wording “through sale or other transfer of ownership” aims to limit the distribution right to permanent distribution processes, which in addition to sale also include transfer of ownership through barter transactions or donations. These are minimum standards; the contracting parties are free to grant a higher level of protection by expanding the acts recorded as dissemination (and, conversely, to restrict this again by means of a principle of exhaustion). In contrast, to the extent of the distribution right granted in the WCT, exhaustion may only occur within the framework defined by Art. 6, Paragraph 2. Insofar as the regulation refers to the fact that this freedom of regulation is "not affected [...]" by the WCT, this applies in particular to the application of the three-step test according to Art. 10 WCT; a permissible exhaustion rule within the meaning of Art. 6 Para. 2 WCT therefore no longer has to be measured against the three-step test of the WCT.

literature

copyright
  • Johannes Becher: The secondary market for software: an economic analysis of the principle of copyright exhaustion . Springer, Wiesbaden 2015, ISBN 978-3-658-08848-4 , doi : 10.1007 / 978-3-658-08849-1 .
  • Alfred Bergmann: On the range of the exhaustion principle in the online transmission of copyrighted works . In: Hans-Jürgen Ahrens et al. (Ed.): Festschrift for Willi Erdmann: For his 65th birthday . Heymanns, Cologne 2002, ISBN 3-452-25191-8 , p. 17-28 .
  • Heinz Blachian: The doctrine of the exhaustion of the distribution right in copyright law . Diss. Jur., University of Munich 1964. Munich 1964.
  • Horst Böttcher: The exhaustion of copyright and its significance in the digital environment . Stämpfli, Bern 2013, ISBN 978-3-7272-1897-2 . [Switzerland]
  • Malte Grützmacher: Finally arrived in the digital age!?: The exhaustion theory in European copyright law: the common internal market and the trade in used software . In: Journal of Intellectual Property . tape 5 , no. 1 , 2013, p. 46-83 , doi : 10.1628 / 186723713X13639496217029 .
  • Till Jaeger: The exhaustion principle in the new copyright law . In: Reto M. Hilty, Alexander Peukert (Ed.): Balance of interests in copyright law . Nomos, Baden-Baden 2004, ISBN 3-8329-0770-X , p. 47-60 .
  • Ulrich Joos: The doctrine of exhaustion in copyright law: an investigation into the legal content and splittability of copyright law with comparative references to trademark law, patent law and plant variety protection . Beck, Munich 1991, ISBN 3-406-35676-1 .
  • Christina Koppe: The copyright exhaustion: An analysis of the consumption norm with special consideration of the latest case law of the BGH and European Community law . Peter Lang, Frankfurt am Main 2004, ISBN 3-631-52775-6 .
  • Carmen Kulpe: The exhaustion principle according to European copyright law: An analysis with special consideration of the digital transmission possibilities . Peter Lang, Frankfurt am Main 2012, ISBN 978-3-631-62407-4 .
  • Beatrix Metelski: Copyright protection and exhaustion in multimedia works: The example of computer games . Heymanns, Cologne 2015, ISBN 978-3-452-28646-8 .
  • Christoph Albrecht Müller: The exhaustion of copyright law for incorporeal reproduction of works . Diss., Univ. Basel 1993. 1993.
  • Alexander Niethammer: the principle of exhaustion and consumer protection in copyright law . Nomos, Baden-Baden 2005, ISBN 3-8329-1576-1 .
  • Gerhard Schricker : Comments on exhaustion in copyright law . In: Peter Ganea, Christopher Heath, Gerhard Schricker (eds.): Copyright yesterday - today - tomorrow: Festschrift for Adolf Dietz on his 65th birthday . Beck, Munich 2001, ISBN 3-406-48174-4 , pp. 447-457 .
  • Thomas Semadeni: Principle of exhaustion in copyright law . Diss., Univ. Zurich 2004. Stämpfli, Bern 2004. [Switzerland]
  • Jan A. Zecher: To circumvent the principle of exhaustion in computer programs . Nomos, Baden-Baden 2004, ISBN 3-8329-0743-2 .

Remarks

  1. ↑ Cf. Reinbothe in Reinbothe / von Lewinski, The WIPO Treaties on Copyright, 2nd edition 2015, § 7.6.18.
  2. ↑ a b Cf. Ansgar Ohly, Barriers to Protection , Lecture Notes, University of Munich, 2014, accessed on May 18, 2015.
  3. ↑ See Keukenschrijver in Busse / Keukenschrijver, Patentgesetz, 8th edition. 2016, § 9 Rn. 144, with further evidence.
  4. ↑ See Keukenschrijver in Busse / Keukenschrijver, Patentgesetz, 8th edition. 2016, § 9 Rn. 151
  5. ↑ See Keukenschrijver in Busse / Keukenschrijver, Patentgesetz, 8th edition. 2016, § 9 Rn. 143, with numerous references.
  6. ↑ See Keukenschrijver in Busse / Keukenschrijver, Patentgesetz, 8th edition. 2016, § 9 Rn. 147.
  7. ↑ See ECJ, judgment of December 5, 1996, C-267/95 and C-268/95 - Merck v. Primecrown and Beecham v. Europharm. Keukenschrijver in more detail in Busse / Keukenschrijver, Patent Act, 8th edition. 2016, § 9 marginal no. 163 ff.
  8. ↑ See Keukenschrijver in Busse / Keukenschrijver, Patentgesetz, 8th edition. 2016, § 9 Rn. 159.
  9. ↑ See Loewenheim / Spindler in Schricker / Loewenheim, Copyright, 5th edition 2017, § 69c marginal no. 32; KG, judgment of June 17, 1997, 5 U 7145/96 = CR 1998, 137, 138; Haberstumpf in Büscher / Dittmer / Schiwy, industrial property rights, copyright, media law, 3rd edition 2015, § 69c UrhG Rn. 6th
  10. ↑ See Schulze in Dreier / Schulze, Copyright Act, 5th edition 2015, § 17 marginal no. 29; Schack, Copyright and Copyright Contract Law, 8th edition 2017, Rn. 429 (on the right to produce sound carriers).
  11. ↑ See ECJ, judgment of January 22, 2015, C-419/13 = GRUR 2015, 256 = ZUM 2015, 241 - Allposters , Rn. 30; von Ungern-Sternberg in Schricker / Loewenheim, copyright, 5th edition 2017, § 15 marginal no. 40.
  12. ↑ See Dreyer in Dreyer / Kotthoff / Meckel, Copyright, 3rd edition 2013, § 17 Rn. 29
  13. ↑ See BGH, judgment of May 4, 2000, I ZR 256/97 = GRUR 2001, 51, 53 - Parfumflakon; Schulze in Dreier / Schulze, Copyright Act, 5th edition 2015, § 17 marginal no. 30; Jaeger, The principle of exhaustion in the new copyright law, 2004, op.cit., P. 51 ff.
  14. ↑ See ECJ, judgment of March 7, 2013, C-275/11 = GRUR 2013, 500 - ITV Broadcasting / TVC , Rn. 23 f .; von Ungern-Sternberg in Schricker / Loewenheim, copyright, 5th edition 2017, § 15 marginal no. 40.
  15. ↑ Exhaustion Principle: Use OEM software on third-party computers
  16. ↑ See BGH, judgment of July 6, 2000, I ZR 244/97
  17. ↑ Read out Windows 10 Product Key and fix activation errors
  18. ↑ See RG, judgment of June 16, 1906, I 5/06 = RGZ 63, 394, 399 - Königs Kursbuch; confirmed in RG, judgment of September 16, 1908, I 499/07 = RGZ 69, 242, 243. Critical to this, Philipp Allfeld, Copyright in works of literature and music, commentary on the law of June 19, 1901 and on the international contracts for the protection of copyright, 2nd edition, CH Beck, Munich 1928 ( digitized via archive.org ), p. 142 f .: Exhaustion only from the point in time at which the work has reached the place where it was used as intended not after the publisher has sold it to a bookseller, for example, but only as soon as the work reaches the reader. RG, judgment of June 11, 1932, I 348/31 = RGZ 136, 377, 388 also confirms the path taken and, by assigning broadcasting to broadcasting rights (today covered by independent broadcasting rights ), extends the exhaustion principle to broadcasts too, so that even the subsequent loudspeaker message falls out of the protection. Rejecting this Wenzel Goldbaum, Copyright and Copyright Contract Law, 3rd Edition, Verlag für Angewandte Wissenschaften, Baden-Baden 1961, p. 99. For the case law of the Reichsgericht on the principle of exhaustion cf. in detail Blachian, The Doctrine of the Exhaustion of Distribution Rights in Copyright Law, 1964, op. cit., pp. 34-36.
  19. ↑ See Joos, Die Exhaustion Teaching in Copyright, 1991, op. Cit., P. 30. In the aftermath, the view was only rarely taken, cf. Franz Gellner, Property as the limit of the exclusive right of distribution. According to the Copyright and Publishing Act of June 19, 1901, Ebering, Berlin 1911, p. 55.
  20. ↑ See Franz Gellner, Property as a limit of the exclusive right of distribution. According to the Copyright and Publishing Act of June 19, 1901, Ebering, Berlin 1911, p. 53.
  21. ↑ To this in more detail, Blachian, The Doctrine of the Exhaustion of the Right of Distribution in Copyright, 1964, op. Cit., Pp. 28–31; Helmut Haberstumpf, Josef Kohler and the theory of exhaustion, in: Journal for Intellectual Property, 2014, No. 4, pp. 470–496, doi : 10.1628 / 186723714X14277207345964 (ingentaconnect); Niethammer, Exhaustion Principle and Consumer Protection in Copyright, 2005, op. Cit., Pp. 18-20. Kohler (1896) thinks, for example, of the proposed exclusive right of distribution: “It is different if the author has given the book to distribution: then he cannot dictate any laws to distribution, at least not within one and the same area of ​​law. It must be regarded as inadmissible to stipulate that a work becomes the subject of the assortment trade, but not of the second-hand book trade [...] Such barriers can only be maintained as long as a font is kept confidential, but not when it is published, ie commercial Dissemination by the usual means of dissemination is given up. ”Cf. Josef Kohler, Autorrechtliche Studien, in: Archiv für die civilistische Praxis, 85, 1896, pp. 339–460, here p. 438 f. ( Digitized via DigiZeitschriften ).
  22. ↑ See Loewenheim in Schricker / Loewenheim, Copyright, 5th edition 2017, § 17 Rn. 36; Joos, The theory of exhaustion in copyright law, 1991, op. Cit., P. 51 ff .; as a result, critical: Schricker, Comments on Exhaustion in Copyright, 2001, op.cit., p. 449 ff.
  23. ↑ See Joos, The Exhaustion Teaching in Copyright, 1991, op. Cit., Pp. 55 f.
  24. ↑ See Joos, Die Exhaustion Teaching in Copyright, 1991, op.cit., P. 54.
  25. ↑ See Joos, Die Exhaustion Teaching in Copyright, 1991, op.cit., P. 53.
  26. ↑ See BGH, judgment of February 23, 1995, I ZR 68/93 = GRUR 1995, 673, 676 - Mauer-Bilder.
  27. ↑ See Malte Stieper, justification, legal nature and availability of the barriers of copyright, Mohr Siebeck, Tübingen 2009, ISBN 978-3-16-150177-7 , pp. 134-136; Joos, The theory of exhaustion in copyright law, 1991, op. Cit., P. 78 f. According to another opinion, Section 17 (1) UrhG per se also grants a right of further distribution, which, however, expires in the event of further distribution due to the consumption norm in paragraph 2. In this sense, for example, Niethammer, Exhaustion Principle and Consumer Protection in Copyright, 2005, op. Cit., Pp. 38–41.
  28. ↑ See Malte Stieper, justification, legal nature and availability of the barriers of copyright, Mohr Siebeck, Tübingen 2009, ISBN 978-3-16-150177-7 , pp. 132, 136.
  29. ↑ See BGH, judgment of June 7, 2001, I ZR 21/99 = GRUR 2001, 1036 - purchase on trial; KG, judgment of January 8, 1993, 5 U 2639/91 = GRUR 1994, 212, 214 - wall pictures; Loewenheim in Schricker / Loewenheim, copyright, 5th edition 2017, § 17 marginal no. 41; Dreyer in Dreyer / Kotthoff / Meckel, copyright, 3rd edition 2013, § 17 marginal no. 40; Joos, The theory of exhaustion in copyright, 1991, op. Cit., P. 68. On European law, cf. ECJ, judgment of April 17, 2008, C-456/06 - Peek & Cloppenburg v. Cassina.
  30. ↑ See BGH, judgment of February 23, 1995, I ZR 68/93 = GRUR 1995, 673, 675 - Mauer-Bilder.
  31. ↑ See BGH, judgment of February 23, 1995, I ZR 68/93 = JZ 1995, 835 (with note Schack ) = GRUR 1995, 673, 676 - Mauer-Bilder. Approving Harmann-Josef Omsels, exhaustion without alienation - on the fate of the right to distribution when acquiring property by law, in: Industrial legal protection and copyright, 1994, pp. 162–167. Another view is the lower court KG, judgment of January 8, 1993, 5 U 2639/91 = GRUR 1994, 212 - wall pictures .
  32. ↑ See BGH, judgment of October 10, 1991, I ZR 147/89 = GRUR 1993, 34, 36 - operating instructions; Loewenheim in Schricker / Loewenheim, copyright, 5th edition 2017, § 17 marginal no. 56; Haberstumpf in Büscher / Dittmer / Schiwy, industrial property rights, copyright, media law, 3rd edition 2015, § 17 UrhG Rn. 17; Dreyer in Dreyer / Kotthoff / Meckel, copyright, 3rd edition 2013, § 17 marginal no. 32 (“Principle of individual exhaustion”).
  33. ↑ See Heerma in Wandtke / Bullinger, Praxiskommentar zum Copyright, 4th edition 2014, § 17 Rn. 26th
  34. ↑ See BGH, judgment of March 3, 2005, I ZR 133/02 = GRUR 2005, 505, 506 - Atlanta; BGH, judgment of July 17, 2013, I ZR 129/08 = GRUR 2014, 264, 269 - UsedSoft II, Rn. 56 ff., For computer programs; Loewenheim in Schricker / Loewenheim, copyright, 5th edition 2017, § 17 marginal no. 35.
  35. ↑ 26. Judgment of the I. Civil Department of December 7, 1999 in the sense of Kodak SA against Jumbo-Markt AG
  36. ↑ Art. 9a of the CH-PatG - SR 232.14 . Website of the federal authorities of the Swiss Confederation. Retrieved October 5, 2012.
  37. ↑ decision of the Federal Assembly of 19.12.2008 - AS 2009 2615 . Website of the federal authorities of the Swiss Confederation. Retrieved October 5, 2012
  38. ↑ See Patry, Patry on Copyright, Status: 9/2015, § 13:15, with further evidence.
  39. ↑ “Notwithstanding the provisions of section 106 (3) , the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord [...] "( 17 USC § 109 (a) ).
  40. ↑ Cf. for example UMG Recordings, Inc. v. Augusto, 558 F. Supp. 2d 1055 (CD Cal. 2008) ( Google Scholar ), to this extent confirmed in 628 F.3d 1175, 1179 (9th Cir. 2011) ( Google Scholar ); Patry, Patry on Copyright, as of 9/2015, § 13:15.
  41. ↑ a b See Patry, Patry on Copyright, as of 9/2015, § 13:16.
  42. ↑ Another view, Platt & Munk Co. v. Republic Graphics, Inc., 315 F.2d 847 (2d Cir. 1963) ( Google Scholar ) for the provision of the same content in the Copyright Act [1909]; but now see Bourne v. Walt Disney Co., 68 F.3d 621 (2d Cir. 1995) ( Google Scholar ). See also Denbicare USA Inc. v. Toys "R" Us, Inc., 84 F.3d 1143 (9th Cir. 1996) ( Google Scholar ), from the literature only Patry, Patry on Copyright, as of 9/2015, § 13:17, with further evidence of case law; Darren E. Donnelly, Parallel Trade and International Harmonization of the Exhaustion of Rights Doctrine, in: Santa Clara Computer and High-Technology Law Journal, 13, No. 2, 1997, pp. 445-516, here p. 465 (fn. 124); Melissa Goldberg, A Textbook Dilemma: Should the First Sale Doctrine Provide a Valid Defense for Foreign-Made Goods? , in: Fordham Law Review, 80, No. 6, 2012, pp. 3057-3092, here pp. 3065 f.
  43. ↑ See Metal Morphosis, Inc. v. Acorn Media Publishing, Inc., 639 F. Supp. 2d 1367, 1372 et seq. (ND Ga. 2009) ( Google Scholar ); Patry, Patry on Copyright, as of: 9/2015, § 13:16.
  44. ↑ See Guy A. Rub, Rebalancing Copyright Exhaustion, in: Emory Law Journal, 64, 2015, pp. 741–817, here p. 745; closer Patry, Patry on Copyright, as of 9/2015, § 13:18.
  45. ↑ Bobbs-Merrill Co. v. Straus, 210 US 339 (1908), 350 f. ( Google Scholar ).
  46. ↑ See for example Clemens v. Estes, 22 F. 899 (D. Mass. 1885) (Westlaw); Henry Bill Pub. Co. v. Smythe, 27 F. 914 (CCSD Ohio 1886) (Westlaw); Harrison v. Maynard, Merrill & Co., 61 F. 689 (2d Cir. 1894) (Westlaw).
  47. ↑ See Bobbs-Merrill Co. v. Straus, 210 US 339 (1908), 351 ( Google Scholar ).
  48. ↑ Own translation. See 17 USC § 41 [1908], later in Section 27, repealed and replaced by the current version with the 1978 Act. See also Patry, Patry on Copyright, as of 9/2015, § 13:19.
  49. ↑ See for example Patry, Patry on Copyright, status: 9/2015, § 13:22; John A. Rothchild, Exhausting Extraterritoriality, in: Santa Clara Law Review, 51, No. 4, 2011, pp. 1187–1240 (via HeinOnline ), here pp. 1195 ff.
  50. ↑ See Quality King Distributors, Inc. v. L'anza Research Int'l, Inc., 523 US 135, 118 S. Ct. 1125, 140 L. Ed. 2d 254 (1998) ( Google Scholar ).
  51. ↑ See e.g. Christopher Morris, Quality King Distributors, Inc. v. L'anza Research International, in: Berkeley Technology Law Journal, 14, No. 1, 1999, pp. 65-85, doi : 10.15779 / Z38W66R (freely accessible), here pp. 66 f. Regarding the possibilities of preventing this procedure under trademark law, cf. Mary LaFranc, A Material World: Using Trademark Law to Override Copyright's First Sale Rule for Imported Copies, in: Michigan Telecommunications and Technology Law Review, 21, No. 1, 2014, pp. 43-78 (via HeinOnline ).
  52. ↑ See Kirtsaeng v. John Wiley & Sons, Inc., 133 S. Ct. 1351, 568 US, 185 L. Ed. 2d 392 (2013) ( Google Scholar ) (with negative vote by Ginsburg, Kennedy and Scalia); another view nor the lower courts, No. 08 Civ. 7834 (SDNY, October 19, 2009) (Westlaw, WL 3364037) and 654 F.3d 210 (2d Cir. 2011) ( Google Scholar ). Rejected Patry, Patry on Copyright, as of 9/2015, § 13:22 (with reference to the necessary national interpretation, which results from the formulation "lawfully made under this title "; because Title 17 regulates US copyright law) undisputedly not applicable to purely international issues); advocating John A. Rothchild, Exhausting Extraterritoriality, in: Santa Clara Law Review, 51, No. 4, 2011, pp. 1187–1240 (via HeinOnline ), here pp. 1228 ff .; in the result B. Chase Smith, International or National Exhaustion: The Need for Legislative Intervention Regarding the First Sale Doctrine, in: Wake Forest Journal of Business and Intellectual Property Law, 14, 2014, pp. 578-598, here pp. 588 ff . (but for legislative intervention to avert the consequences of the decision).
  53. ↑ See for example Guy A. Rub, Rebalancing Copyright Exhaustion, in: Emory Law Journal, 64, 2015, pp. 741–817, here p. 751; Addie T. Katz, The Merging of Black and Gray: International Copyright Infringement in the Post-Kirtsaeng Era, in: Hofstra Law Review, 43, No. 1, 2014, pp. 291–323 (via HeinOnline ), here p. 296 f.
  54. ↑ In detail Kirtsaeng v. John Wiley & Sons, Inc., 133 S. Ct. 1351, 1364 ff. ( Google Scholar ).
  55. ↑ See also von Lewinski / Walter in dies., European Copyright Law, 2nd ed. 2005, § 11.3.39.
  56. ↑ See for example Blocher / Walter in von Lewinski / Walter, European Copyright Law, 2nd ed. 2005, § 5.4.39, who even call the statement truism . See also the relevant recitals of the Commission to the initial draft of the InfoSoc Directive: “Article 3 (3) reiterates that the on-line transmission of a work or other subject matter with the consent of the rightholder does not exhaust the relevant right which protects this act of exploitation […] This provision is only a clarification of the existing legal situation at Community level, recalling that the provision of services does not give rise to exhaustion of rights. " See Commission of the European Communities, Proposal for a European Parliament and Council directive on the harmonization of certain aspects of copyright and related rights in the Information Society (COM (97) 628 final). Explanatory Memorandum, December 10, 1997, para. 4 to Art. 3 ( digital copy via University of Pittsburgh , PDF file, 2.7 MB).
  57. ↑ ECJ, judgment of July 3, 2012, C-128/11 = NJW 2012, 2565 = GRUR 2012, 904 (with note Hansen / Wolff-Rojczyk ) = ZUM 2012, 661 = MMR 2012, 58 (with note Heydn ) - UsedSoft.
  58. ↑ See ECJ, judgment of July 3, 2012, C-128/11 - UsedSoft, Rn. 44-48.
  59. ↑ See ECJ, judgment of July 3, 2012, C-128/11 - UsedSoft, Rn. 47.
  60. ↑ See the references from Grützmacher in Wandtke / Bullinger, Praxiskommentar zum Copyright, 4th edition 2014, § 69c marginal no. 31 and Stefan Krüger, Manuel Biehler and Simon Apel, no “used games” from the net. Inapplicability of the “UsedSoft” decision of the ECJ on video games, in: MultiMedia und Recht, 2013, No. 12, pp. 760–765, here p. 761, fn. 13. Mostly negative Ellen F. Schulze, Resale of digital content such as music, films or eBooks under European law, in: European Intellectual Property Review, 36, No. 1, 2014, pp. 9–13; Reto M. Hilty and Kaya Koklu, Software agreements: stocktaking and outlook - lessons from the UsedSoft v Oracle Case from a comparative law perspective, in: International Review of Intellectual Property and Competition Law, 44, No. 3, 2013, p. 263 –292, in particular p. 274 ff .; Helmut Haberstumpf, Josef Kohler and the theory of exhaustion, in: Journal for Intellectual Property, 2014, No. 4, pp. 470–496, doi : 10.1628 / 186723714X14277207345964 (ingentaconnect), here pp. 481 ff .; ders., under the aspect of the concept of sale or property, sale of immaterial goods, in: Neue Juristische Online-Zeitschrift, 2013, No. 22, pp. 793–804, here pp. 796 ff .; Ansgar Ohly, Legal Barriers or Individual Contract ?, in: Thomas Dreier and Reto M. Hilty (Eds.), From Magnetic Tape to Social Media. Festschrift 50 Years of Copyright Law (UrhG), Beck, Munich 2015, ISBN 978-3-406-68519-4 , pp. 379–397, here pp. 391–393. Mostly agreeing Dreier in Dreier / Schulze, Copyright Act, 5th edition 2015, § 69c Rn. 24; Martin Senftleben, The continuation of the copyright exhaustion principle in the digital environment. The UsedSoft decision of the ECJ: Fall of Man or Liberation ?, in: Neue Juristische Wochenschrift, 2012, No. 40, pp. 2924–2927; Yin Harn Lee, UsedSoft GmbH v Oracle International Corp (case C-128/11) - sales of “used” software and the principle of exhaustion, in: International Review of Intellectual Property and Competition Law, 43, No. 7, 2012, Pp. 846-853, here pp. 852 ff .; Hans-Peter Roth, A neverending story: The trade in used software. Effects and consequences of the jurisprudence in the UsedSoft dispute, in: Competition in Law and Practice, 2015, No. 11, pp. 1303-1311, here pp. 1306 ff. See also Lazaros G. Grigoriadis, Exhaustion and Software Resale Rights in Light of Recent EU Case Law, in: Journal of International Media & Entertainment Law, 5, 2013–2014, pp. 111–127; Thomas Hartmann, reselling and "lending" content distributed online. At the same time, comment on ECJ, judgment of July 3, 2012, case C-128/11 - UsedSoft ./. Oracle, in: Intellectual Property and Copyright Law - International Section, 2012, No. 11, pp. 980–989; Michael Rath and Christoph Maiworm, is the way clear for second-hand software? ECJ, judgment of 03.07.2012 - C-128/11 paves the trade in used software, in: Competition in Law and Practice, 2012, No. 9, pp. 1051-1055; Ole Jani, Until exhaustion? For the admissibility of the resale of files acc. Directive 2001/29 / EG according to the judgment C-128/11 of the ECJ (Usedsoft ./. Oracle), in: Winfried Bullinger (Hrsg.), Festschrift for Artur-Axel Wandtke on his 70th birthday on March 26, 2013, De Gruyter, Berlin 2013, ISBN 978-3-11-028351-8 , pp. 331-340; in detail Malte Grützmacher, finally arrived in the digital age !? The doctrine of exhaustion in European copyright law: the common internal market and the trade in used software, 2013, op. Cit., In particular p. 52 ff .; Thomas Dreier and Marco Ganzhorn, contractual strategies according to UsedSoft, in: Peter Bräutigam and Peter Hoppen (eds.), DGRI Yearbook 2013, O. Schmidt, 2013, ISBN 978-3-504-67022-1 , pp. 233–250; Thomas Dreier and Matthias Leistner, Copyright on the Internet: The Research Challenges, in: Commercial Legal Protection and Copyright, 2013, pp. 881–897, here pp. 887 f .; Reto M. Hilty, The Legal Nature of the Software Contract. Findings from the decision of the ECJ UsedSoft vs. Oracle, in: Computer und Recht, 28, No. 10, 2012, pp. 625-637, doi : 10.9785 / ovs-cr-2012-625 (De Gruyter). For the effects in the case law cf. in particular Maša Savic, The legality of resale of digital content after UsedSoft in subsequent German and CJEU case law, in: European Intellectual Property Review, 37, No. 7, 2015, pp. 414-429. Comparative law to US law Ken Moon, Resale of digital content: UsedSoft v ReDigi, in: Entertainment Law Review, 24, No. 6, 2013, pp. 193–195; Lukas Feiler, Birth of the First-Download Doctrine — The Application of the First-Sale Doctrine to Internet Downloads under EU and US Copyright Law, in: Journal of Internet Law, 16, No. 4, 2012, pp. 1–21.
  61. ↑ See ECJ, judgment of October 12, 2016, C-166/15 - Ranks / Vasiļevičs v. Finanšu un ekonomisko noziegumu izmeklēšanas prokoratūra / Microsoft Corp, Rn. 53 ff.
  62. ↑ Cf. in particular Simon Apel: No application of the “UsedSoft” case law of the European Court of Justice beyond computer programs - an inventory of the exhaustion of “used” digital goods, in: Journal for Copyright and Media Law, 2015, No. 8/9, p 640-648. See also Maša Savic, The CJEU Allposters case: beginning of the end of digital exhaustion ?, in: European Intellectual Property Review, 37, No. 6, 2015, pp. 378–383, here p. 378.
  63. ↑ See ECJ, judgment of July 3, 2012, C-128/11 - UsedSoft, Rn. 56.
  64. ↑ ECJ, judgment of January 22, 2015, C-419/13 = GRUR 2015, 256 = ZUM 2015, 241 - Allposters.
  65. ↑ See ECJ, judgment of January 22, 2015, C-419/13 - Allposters, Rn. 33-40.
  66. ↑ See ECJ, judgment of January 22, 2015, C-419/13 - Allposters, Rn. 45.
  67. ↑ curia: "Reference for a preliminary ruling - Harmonization of certain aspects of copyright and related rights in the information society - Directive 2001/29 / EC - Art. 3 Para. 1 - Right of communication to the public - Accessibility - Art. 4 - Distribution right - Exhaustion - E ‑ Books - Virtual Market for 'Used' E ‑ Books ” , December 19, 2019
  68. ↑ heise.de: ECJ: Used e-books may not be resold , December 19, 2019
  69. ↑ a b c Here reproduced from the Swiss Federal Authorities, Systematic Legal Collection No. 0.231.151. WIPO Copyright Treaty (WCT) , accessed November 19, 2015.
  70. ↑ See Reinbothe in Reinbothe / von Lewinski, The WIPO Treaties on Copyright, 2nd ed. 2015, §§ 7.6.10 f., 7.6.14.
  71. ↑ For the details cf. Reinbothe in Reinbothe / von Lewinski, The WIPO Treaties on Copyright, 2nd edition 2015, §§ 7.6.11 ff.
  72. ↑ See Reinbothe in Reinbothe / von Lewinski, The WIPO Treaties on Copyright, 2nd edition 2015, §§ 7.6.18, 7.6.23.
  73. ↑ a b Cf. Reinbothe in Reinbothe / von Lewinski, The WIPO Treaties on Copyright, 2nd edition 2015, § 7.6.22.
  74. ↑ See Reinbothe in Reinbothe / von Lewinski, The WIPO Treaties on Copyright, 2nd edition 2015, § 7.6.24.
  75. ↑ Cf. Reinbothe in Reinbothe / von Lewinski, The WIPO Treaties on Copyright, 2nd edition 2015, § 7.6.25.