Study On The Application Of The Principle Of First Sale In Digital Works

With the progress of internet technology,the second-hand trading market of digital works rises.Whether digital works can apply the principle of first sale is a problem that must be solved for the survival and development of digital works second-hand trading market.In this paper,starting from the theoretical basis of distribution,and through the digital works and the analysis of the characteristics of digital works resale behavior to discuss first sales principle reason for problem in digital works,integrated the experience of legislation and judicial practice abroad,analysis of sales for the first time under the digital environment suitability,the principle of seeking for the first time sales principle is applicable to the feasible path of digital works.The introduction clarifies the research background and significance of this paper,summarizes the research status at home and abroad on the application of the principle of exhaustion of distribution rights of digital works,and explains the research content and research methods of this paper.The text is divided into five parts.The first chapter summarizes the principle of first sale under the traditional theory,including the theoretical basis,institutional value and applicable conditions.The second chapter illustrates the dilemma of applying the first sale principle to digital works.Under the traditional theory,the distribution behavior is limited to the transfer of the ownership of the tangible carrier of a work,and the intangibility of the carrier of a digital work makes it difficult to identify the resale behavior as the distribution behavior.In addition,the expansion of the distribution right to the digital environment is in conflict with the information network dissemination right,including the overlapping of the scope of regulation and the opposite of the value orientation.Even if the resale of digital works can be regarded as distribution,the object condition and the subject condition applicable to the principle of exhaustion of distribution rights are equally difficult to satisfy.The reproduction associated with the resale of digital works may constitute a violation of the right of reproduction and may result in a large number of illegal copies flowing into the market.The copyright owner replaces the sales contract with a license agreement,excluding the application of the first sale principle.Chapter three makes an overseas investigation.WCT’s "umbrella solution" opens the possibility for digital transmission to be identified as a publishing activity.The European Court of Justice has proposed that the principle of first sale can be applied if "transfer-deletion" is satisfied,but whether "transfer-deletion" can completely solve the problem of the application of the principle remains to be discussed.For the distinction between "license" and "sale",the United States proposed the "three-step test method",while the European Court of Justice proposed the permanent right of use as the distinction standard,providing a w ay to apply the principle of first sale to the transaction of digital works under the license agreement mode.Chapter four analyzes the principle of first sale of digital works.The "tangible carrier" is not the core element of the distribution behavior.The resale of digital works belongs to the distribution behavior.The right of distribution in the digital environment is not in conflict with the information network dissemination right.The regulation scope of the right of distribution is limited to the act of providing downloads.In addition,effective supervision of resale behavior,additional conditions of "transfer-deletion" and proof of legitimate source of copies can achieve the satisfaction of object conditions.As for the subject condition,the standard of "permanent use" is put forward.As long as the license agreement gives the user the right to use the work permanently,the licensee will enjoy the ownership and become the subject applying the principle of first sale.The uniqueness of NFT digital works produced by the development of blockchain technology and the characteristics that no new copies are produced in the transaction process create more favorable conditions for the application of the principle of exhaustion of distribution rights in the field of digital works.The last chapter puts forward the application conditions.The principle of first sale of digital works is only applicable to the provision of downloaded digital works,and "permanent use" should be taken as the standard of identification of the main condition,the reseller should prove the legitimacy of the source of the copy of digital works,and meet the supplementary conditions of "transfer-deletion".