디지털저작물에 대한 권리소진원칙의 확대적용에 관한 연구

The principle of exhaustion, or the first sale doctrine (US), in copyright means that once a copy of a work is put on the market with the consent of the right holder he or she will not be entitled to control the further distribution of the copy. It is well settled that the exhaustion rule applies to the distribution of tangible copies (books, CDs, DVDs etc), but its application to the online context is controversial. According that digital networks emerge as the dominant means of distributing copyrighted works, the exhaustion of right has increasingly been marginalized. To the extent the use and alienation of copies entails their reproduction and adaptation to new platforms, the limitations of the exhaustion places on the exclusive right of distribution decrease in their legal and market impact. This fact of the modern copyright marketplace has led to calls for statutory clarification of digital exhaustion of rights. In the UsedSoft case the Court of Justice of the European Union nevertheless applied the exhaustion rule of the Computer Software Directive to a situation where ‘used licenses’ of computer software were passed on to third parties enabling them to download the software from the right holder’s website. Therefore, This article will approach the question of extending the exhaustion of right into the digital realm by analyzing the characteristics of physical copies that already avail themselves of the exhaustion and determining whether those relevant characteristics are also present in certain digital copies. This article, as reviewing the case and theory on the exhaustion of right of digital works, will propose an alternative on the digital exhaustion of right.