| Summary: | 碩士 === 國立中興大學 === 法律學系科技法律碩士班 === 106 === The first sale doctrine, originally established by the United States Supreme Court in 1908, has successfully balanced the competing interests between consumers and copyright owners. However, with the rapid development of technology, copyright holders question whether the first sale doctrine should be applied to digital goods. The distribution of copyrighted works has transitioned from the transfer of tangible items to the digital transmission of digital works.
The first sale doctrine allows owners of a copy of a copyrighted work to dispose of that copy as they see fit. However, copyright owners argue that transactions of these digital works are merely licenses rather than sales. If consumers are characterized as merely licensees, they are not permitted to sell or give away their copies. These license agreements are destroying the concept of ownership and copyright owners are using them as a means of circumventing the first sale doctrine. Can copyright owners actually distribute copyrighted works by means of “license”? How did the courts determine whether the transfer of digital media constitutes a license or a sale?
Another issue is that in the process of transferring digital media, a new copy is unavoidably created. Copyright owners argue that the creation of new copies constitutes copyright infringement because the first sale doctrine does not protect those who make unauthorized reproductions of a copyrighted work. Does that mean the first sale doctrine can never apply to digital content? If only one copy exists before and after the digital transmission, without creating multiple copies, would it make any difference?
This thesis begins with a general introduction to the background of the study, and then briefly explains the legislative history, the current state, and its underlying rationale of the distribution right and the first sale doctrine under the U.S. copyright law and international conventions. This thesis also examines the exhaustion principle in the European Union, and analyzes differing interpretations of the distribution right and the first sale doctrine. After that, this thesis describes the nature of digital works and how this new digital technology is threatening the emerging industry. This thesis also examines what factors the courts consider when determining whether a first sale occurred and how they have interpreted the first sale doctrine when new copies are made during a digital transmission. Finally, this thesis will see if it is necessary to create the digital first sale doctrine and propose an amendment to the current law.
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