The First Sale Doctrine In The Network Environment

The first sale doctrine is a fundamental tenet of copyright law and limitation on the exclusive rights, which prevents an owner of copyright in a work from controlling subsequent transfers of copies of that work. Once the copyright owner transfers ownership of a particular copy embodying a copyrighted work, the copyright owner’s exclusive right to distribute copies of the work is "extinguished" with respect to that particular copy. Consumers dispose of certain copy don’t need to get the permission of or pay any fees to the copyright owner of the work. The birth of the network environment raises the discussion of the first sale doctrine again. In the traditional environment, although there is no clear stipulation in our country for the first sale doctrine, but we affirm to apply the doctrine in practice. Our Copyright Law through the network spread’s right to adjust the network distribution behavior. However, the application of the first sale doctrine in the network environment is still a legal blank. Therefore, it is necessary to study this doctrine, so as to promote the perfection of legislation, ease the tension between the copyright owner exclusive rights and consumer disposition, balance interests between the copyright owner and the consumer.The main content of this thesis can be divided into three parts:The first part is the analysis about the traditional first sale doctrine. Starting from the origin, meaning the first sale doctrine:its premise is that the copy of work is put into circulation with the approval of the holder; its applicable objects with specificity that only the copy of the work which subject to consent by the holder and enter the circulation field can apply the doctrine; its result is distribution of exhaustion, including rental of exhaustion in some countries. Trace back the source, applying the first sale doctrine in the traditional environment is because the work with the carrier objectively inseparable which cause the possibility of conflict between copyright and ownership, is also based on the fundamental requirement of balancing of interests.The second part is the theory on the question of applying the doctrine in the network environment. First of all, it is the question about the connotation of the distribution. Skeptics think network transmission behavior without the transfer of the ownership of the copy material, it is not in conformity with the traditional distribution behavior of constitutive requirements. And the creation of the network spread’s right in our country has ruled out the possibility to apply the doctrine in the network environment. Second, it is the question of infringing the reproduction right. Skeptics think distribution behavior and replication behavior in the network environment have overlap, violated the copy right of the copyright owner and copy right is not applicable to the doctrine. In the end, it is the theoretical basis of questioning. Skeptics think digital works and carrier objectively is divisible. So after the network issue, there is no conflict between copyright and ownership. If we continue to apply this doctrine will damage the interests of the copyright owner and break the balance of interests.The third part is the focus of this thesis. In this part, the thesis deeply analyzes the doctrine in the network environment. Combined with outside investigation and skeptics’point of view, the thesis comprehensively analyzes the application problem of the doctrine in the network environment in China. Network distribution meets the requirements of the fixed work. Although it is adjusted by the network spread’s right, remains essentially is a kind of distribution behavior. If the automatic or essential reproduction behavior during the circulation of digital works is not for-profit, it will not constitute infringement of copy right. Transferring digital works is a kind of consumers’ trading habits which following the traditional trading rules and it is difficult to change. There still exists a conflict of interest between the copyright owner and the customer in the network environment. If the technical measures can make sure that without additional copies after circulation, then in the network environment we should apply the doctrine. Otherwise, it will be a huge damage to the interests of the consumer and will destroy the balance of interests.