디지털 콘텐츠에 대한 최초판매원칙의 적용에 관한 소고 - 최근 해외 사례를 중심으로 -

The first sale doctrine is the rule that the purchaser of a physical copy of a copyrighted work, such as a book or CD, may give or sell that copy to someone else without infringing the copyright owner's exclusive distribution rights. With regard to that physical copy, the copyright owner's distribution right is said to be exhausted. So this doctrine is also referred to as rule of exhaustion. The first sale doctrine was made at a time when most copyrighted material had physicality. Now, much of copyrighted material hides invisibly within computers and mobile devices. As with many new technological developments, a new issue is raised on whether the first sale doctrine can be applied to various digital contents with physical medium and digital contents transferred, downloaded via internet without physical medium. Roughly speaking, The main issue of the applicability of the first sale doctrine in relation to digital contents is whether the acquisition of a digital contents is a sale transaction or merely a license. In the United States, the issue of whether a digital music file, lawfully made and purchased, may be resold by its owner through ReDigi under the first sale doctrine, the court held that it cannot. In contrast, The European Union has taken steps towards making digital contents available in resale markets. The European Court of Justice determined that exhaustion applies to used computer software in the Usedsoft case. The decision’s application to other digital contents is uncertain. The recent decision by the German Regional Court stated that the reasoning in UsedSoft does not apply to other digital contents and therefore held that exhaustion does not apply to digital audio books. The purpose of Copyright Act is to protect the rights of authors and the neighboring rights and to promote the fair use of works in order to contribute to the improvement and development of the culture industry and related industries. The author’s rights and user’s rights both are important object to protect. The issue of the application of the first sale doctrine for digital contents should be solved the problem in this point of view and solutions made from unbiased positions.