Study On The Application Of The First Sale Doctrine Of Copyright In The Digital Environment

The first sale doctrine is an important doctrine in copyright law that seeks to discern the boundary of ownership and distribution right.However,whether the doctrine is still applicable in the digital environment has become a heated topic of theory and practice.In recent years,the disagreements of judgments between the leading cases in the United States and the European Union,ReDigi and UsedSoft,clearly reflect this issue.Exploring the leading cases,summarizing the referee points and comparing the similarities and differences are the premise of reflection on whether the first sale doctrine has a suitable basis and how it should be applied in digital environment.Faced with the contradictions in practice,it is particularly important to analyze the necessity of application of the first sale doctrine in digital environment.From legislative purposes aspect,clarifying the boundary of ownership and distribution right is the legislative purpose of the first sale doctrine.From value and function aspect,such functions as maintaining a competitive market,protecting consumers' welfare and ensuring the dissemination of science and culture demonstrate the significance of this doctrine.From time background aspect,the developing trend of the information revolution and the establishment of the long-tail market have revealed that the application of the doctrine is an inevitable choice.The purpose of the legislation,the practical function and the review of the background of the era fully demonstrate the necessity of the application of the first sale doctrine.The traditional first sale doctrine should continue to be applied under the digital environment,but the difficulties faced by the application of this doctrine cannot be ignored.From legal aspect,digital copy and the birth of new copy breakthrough conditions of the application of the doctrine;the interweave of the distribution right and the right of network dissemination hinder the application of the doctrine;the substitution of the licensing contract for sales contract shakes the fundamental premise to which the doctrine applies.From practical aspect,the imperfectness of the "copy + delete" technology and the lack of trust in the technology have stalled the application of the doctrine;the swing of balance of copyright law in digital environment adds many uncertainties to the application of the doctrine.Whether from legal dimension or practical dimension,the application of the traditional first sale doctrine faces certain difficulties.However,all these dilemmas are phenomenal and can be solved through legal analysis and technical support.On the basis of solving the applicable dilemma,only if the first sale doctrine of traditional copyright changes from time to time and applied flexibly,can its functions be brought into full play.In the perspective of comparative law,the United States law,the EU law and the Japanese law provide us with the theory and practice references.In the process of adaptability,China should firstly codify the first sale doctrine and clarify the related legal concepts such as "copy","distribution right" and "right of network dissemination".On the basis of this,refining the conditions for the first sale doctrine,clarifying the specific requirements for the application of the doctrine in digital environment can help to build a suitable path for adaptation.In addition to the above mentioned paths,the idea of the permitting use of digital works is also an external path for solving the related problems.