Duncan Calow is Partner at DLA Piper UK LLP ( firstname.lastname@example.org).
one-off payment models,
and cloud versus download
had a legal as well as a
commercial and technical
relevance. Then, last year, the
European Court issued a
further decision that held
that video games, as complex
multimedia works, fell
outside the scope of the rules
on software. In which case,
might digital resale rights not
be applicable to video games,
ebooks or other copyright
works after all?
The software approach
Some saw this as the EU moving back towards the US and the
underlying international treaty with which copyright laws
should comply. Others argue that the software approach may
yet be applied to all works and a decision in a Belgian ebook
case may soon be issued by the European Court. In any event,
copyright reform is once again on the agenda in both the EU
and US. So the central debate around whether exhaustion
principles applicable to physical works, that degrade with time
and use, can and should be extended to digital products, that
do not, will finally be addressed before too much longer.
The debate over digital exhaustion interconnects with other
rights issues that legislators, or the courts, are under pressure
to settle. Many result from the persistent tension between the
strong monopoly rights granted by intellectual property and
the market protections policed by competition law. Right now,
of course, the publishing industry needs no reminding of the
Orwellian power of the competition and antitrust authorities.
Plenty of people in the Buchmesse this week will know to
avoid a trip to that particular Room 101. And the current
activities of those authorities in a wide range of others sectors
shows that their focus is still firmly on digital.
At the heart of much of that, certainly within the EU, is the
consumer–a primary concern with the protection of freedoms
for the individual e-reader, viewer, listener and browser.
Which interconnects, in turn, with consumer law and changes
implemented last year across the continent updating the
already detailed rules for buying content online. Yet more
legislation in the UK this autumn confirms specific rights of
refund and other remedies for digital purchases–recognised
for the first time as, uniquely, neither goods or services. All of
which is on top of the well-established European rules
prohibiting complexity or legalese in consumer terms.
George Orwell would at least have appreciated the clear
use of language, but the jury is still out on how today’s
consumers will choose to exercise any rights that new legal
developments allow. ■
with other rights
the courts, are
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