The Breakthrough And Application Of The Principle Of First Sale Doctrine In The Digital Context

As the restriction of the right of distribution,the first-sale doctrine is absorbed by the copyright laws of many countries.With the development of the digital and network technology,the regulation brought by the copyright system to the dissemination of works faces new challenges.In the context of the digital works becoming the mainstream works and the network dissemination of digital works becoming the main way of dissemination,with the exception of individual country that protect intellectual property rights firstly take the network communication behavior into the scope of the traditional distribution rights,most countries including China regulate this kind of communication by establishing a network communication right separately in the copyright law.The first-sale doctrine is based on the right of issuance,so the legislative mode of setting up the right of network communication separately directly precludes the application of the doctrine in the digital environment.The absence of the first-sale doctrine in the digital environment breaks the balance of interests between the once again,and the network transmission of the second-hand digital works loses legitimacy.So,whether the first-sale doctrine can be extended to apply to the digital environment,and to reshape the balance of the rights holders of the copyrighted works and the consumers of the works has become an unfinished question.Whether in the civil law system or the common law system,the first-sale doctrine originated in the judicial cases.There are two very influential views in academia on the basis of the value of the first-sale doctrine,one of them is the view of the conflict of rights,it is believed that the value of the first-sale doctrine is to based on the settlement of the conflict between the property rights that exist in the original or copy of the work and the intellectual property rights that exist in the work.If there is no first-sale doctrine,the buyer’s re-punishment of the original works or copies of the will be subject to the copyright owner’s right to issue.In fact,this view overly emphasizes the role of contingency conflict in copyright legislation.The works and the carrier is Works and the carrier has always shown a relationship since the birth of the beginning,the former attached to the latter,the latter served the former,just like fish and water,especially in the former digital age,works can not be separated from the carrier,which laid the carrier’s primary value or even the only value that is presented works.The so-called "conflict",to a large extent,is a imagination,a typical counter-example is: when the legal owner of the copyrighted product leases the product,thereis also conflict between the property right and the right to rent,but the countries that sets out the first-sale doctrine in the law do not have the right to rent as the applicable object of the doctrine.Another view is that the first-sale doctrine is a means of balance of interest,it’s value is based on the balance between the interests of copyright holders and consumers.The spirit of balance of interests runs through copyright law and even all civil law,regard this spirit of legislation as the basis of the value of the first-sale doctrine,not only cause reasoning one-sided,but also caused the pan-balance of interest in analysis of institution.Microeconomics provides a new path for the analysis of the value of the first-sale doctrine,with this path,the real value of the first-sale doctrine can be drawn the benefits of the dissemination of works under the guidance of the balance of interests.The balance of interests is the legal pursuit of the first-sale doctrine,and maximizing the efficiency of communication is the practical consideration of the first-sale doctrine.There are three obstacles in the application of the first-sale doctrine in the digital environment,first,the invisibility of the carrier makes the premise of the first-sale doctrine could be applied in traditional environment disappear,the transfer of ownership of the carrier no longer exists,at the same time,whether the network transmission should be subject to the control of the right of distribution to be widely disputed;Second,the network transmission involved in the copy of the work,which inevitably violates the right to copy own by others;Third,the right holder of the digital works usually use the terms of format that prohibit buyers from transferring,this makes the first-sale doctrine limited by the user agreement and other contract restrictions and difficult to apply.The United States and Europe have different attitudes towards whether the first-sale doctrine can be applied to the digital environment.The United States had extensive discussions on the issue at the end of the last century to the beginning of the century,the disputants have their own words and eventually the bill that allow the first-sale doctrine applied in the digital environment didn’t pass.In the judicial practice,the US District Court had tried to boldly acknowledge the application of the in the digital environment,however,after extensive controversy,the High Court has established a case law rule that does not apply first-sale doctrine in the digital environment in a series of cases.The EU has shown a completely different attitude to the United States,not only confirm the first-sale doctrine in the digital environment in the cases and legislation,but also established a principle called "permanent possession" that is of great reference.It has the necessity and the feasibility that applying the first-sale doctrine in digital environment.Necessity is manifested in: With the further prosperity of China’s market of electronic works,there is vast market demand of the trade of second-hand digital work,the absence of the first-sale doctrine in legislation has already created resistance to the development of emerging market transactions.Feasibility manifested in: The three obstacles that hindering the application of the first-sale doctrine in the digital environment can be resolved by reconstructing the theory of copyright law.Specifically: First,to confirm the first-sale doctrine could be applied without the transfer of tangible material carrier;Second,to confirm the reproduction in the process of "upload + delete" should be exempted;Third,make a clear distinction between sales and licensing to avoid right holder expanding unreasonably distribution rights through the user agreement;Fourth,ensure that the absolute number of works in the resale of digital works will not increase by technical means.In addition,under the perspective of incomplete contract theory,the development of digital technology makes the copyright system become an "incomplete contract".At this time,the problem of legislative lag should be solved in the way of the most conducive to the realization of the copyright function.In view of the ultimate goal of China’s copyright law is to promote the prosperity of science and technology,literature and art by encouraging the creation and dissemination of works.The introduction of the first-sale doctrine to the digital environment can promote the dissemination of works and will not reduce the creation of works,which is conducive to the realization of the purpose of copyright legislation,therefore,with the incomplete contract theory as the perspective,the expansion and application of the first-sale doctrine in digital environment has the legitimacy.Although the thinking of the incomplete contract theory can not constitute the theoretical basis of the application of the first-sale doctrine in the digital environment,it is a highly persuasive argument.In our country,the primary measure of extending the first-sale doctrine to the digital environment is to redefine the connotation of the distribution right and to incorporate the network communication behavior into it.Second,confirming the reproduction in the process of "upload + delete" should be exempted,make a clear distinction between sales and licensing.Finally,in the specific operational level,the transfer of second-hand digital works must be carried out on a specific platform,in order to avoid the increase in the number of works,the platform has the obligation to take the initiative to review and supervise.In order to alleviate the impact of such institutional changes on the interests of the rights holders and reduce theresistance of the system reform,a is to reserve a certain interest protection period or limit the second-hand digital works on the basis of the above-mentioned legislative model.the sub-optimal institutional arrangement can be used as a means of transition in the short term to play a role.