The principle of exhaustion of copyright in digital copies of works in the case law of the Court of Justice of the European Union – Part 1

The need to protect digital copies from copyright infringements is also increasing as the digitalisation factor increases. The problem of copyrighted protection of works in the digital version combines complex technical issues with no less complex legal issues, both at international and national level.

The purpose of this work is to discuss the precedent decisions of the Court of Justice of the European Union (hereinafter ‘the Court’ or ‘TSEU’) as milestones in the process of shaping the EU principle of the exhaustion of copyright to digital copies of works[1].

As this study presents the evolution of the jurisprudence of the TEU in the last decade, the scope of the issue required that the article be divided into two parts.

Parts second, In the next the issue of the Bulletin, the case law of the TEU on derogations from the right to reproduce digital copies of works and the lack of a rule of exhaustion of copyright to those copies.

1. Regulation of the right to distribution and the principle of the exhaustion of copyright in EU directives

Distribution right in EU legislation is regulated in two separate legal acts, i.e. In Directive 2009/24 (so-called Software Directive or Software Directive) 2 and Directive 2001/29 (so-called Copyright Directive or InfoSoc Directive)[3].

On the right to distribute Article 4(1) The InfoSoc Directive states that ‘Member States should provide for exclusive rights for authors to permit or prohibit any form of public dissemination of the original of their works or copies thereof by sale or otherwise’.

In turn Article 4(1) point (c) The software directive states that ‘(...) the exclusive rights of the rightholder (...) include the right to perform or authorise any form of public distribution, including the loan of the original computer program or copies thereof’.

Naturally, the concept of “dissemination” is also known in Polish law (video Article 50(2)(3) Act on 4 February 1994 about copyright and related rights 4 , However, according to the principle of primacy of EU law over national law, this concept should be interpreted in accordance with EU law.

Under the right to distribute, EU law has developed the principle of the exhaustion of copyright. This principle derives from German and American law, but is also known in Polish law (video Article 51(3) u.p.a. 5 ).

In EU law, the purpose of this principle is to try to strike a balance between the protection of copyright and the free movement of goods and services in the common market, as it is the free movement of goods and services at the heart of European economic integration and is the overarching value in the EU.

In search of a balance between the protection of the rights of the author and the principles of creating an area of the common market without internal borders, a number of directives (including the Software Directive and the InfoSoc Directive) provide for the EU principle of the exhaustion of rights in order to ensure the possibility of copyright in the common market.

Software Directive regulates exhaustion under Article 4(2) providing that ‘the right to distribute within the Community the original or copies of the work concerned exhaustive only in case of first the sale of the object or other transfer of ownership within the Community by or with the authorisation of the rightholder.’ InfoSoc Directive under Article 4(2) states that ‘first sale within the Community of copies of a computer program by the rightholder or with his consent exhaustive the right of distribution within the Community of that copy, with the exception of the right to check further loans of the programme or copies thereof.’

It seems that the issue of the exhaustion of copyright has been dealt with directly in the abovementioned directives and, in accordance with the principle of clara non sunt interpretation, there is no need to involve the TEU in interpreting this principle. However, the wording should be kept in mind points 28 and 29 preamble to the InfoSoc Directive:

„(28) „The protection of copyright under this Directive includes the exclusive right to control the distribution of works in the form of a material medium. first sale in the Community of the original work or copies thereof by or with the authorisation of the rightholder exhaustive the full right to control the resale of this object within the Community (...),

(29) The problem of full use does not arise for services, in particular online services (...)’.

In the light of the above, therefore, the question arises whether the right to distribute a digital copy of the work may be exhausted? The Court of Justice of the European Union has faced this question over the last decade.

1. Copyright exhaustion for computer programs – judgment of the TEU in UsedSoft GmbH v. Oracle International Corp. 6

The facts underlying the dispute between UsedSoft and Oracle were as follows. Oracle created and distributed, among others, through the Internet download system, computer programs for client-server networks. This was because the client downloaded a copy of the program directly from the Oracle website to his computer.

The right to use such a program in the licence agreement included the right to permanently store copies of it on the server and make it available to the maximum 25 users by downloading software to the main memory of their computers.

According to these license agreements, the customer obtained, exclusively for the purposes of his own business, an unlimited and non-transferable right to use the software.

The service contract provided for the possibility of downloading from the Oracle website updated versions of a particular computer program (updates) and programs to correct bugs (patches). UsedSoft was a German company that sold licences redeemed from Oracle's customers.

Customers of UsedSoft, who had not yet been software holders, downloaded them, after acquiring the “used” license, directly from the Oracle website. Customers who already owned this software could purchase licenses or their parts for additional users.

In this case, these customers downloaded software for the main memory of these additional users.

Oracle sued UsedSoft before a German court demanding a ban on this practice. Oracle won the case before the German court in both the first and the second instance, but the court hearing the dispute at the last instance of the Bundesgerichtshof (German Supreme Federal Court) asked the Court to interpret in this context Directive 2009/24.

The referring court referred the following questions to the Court of Justice for a preliminary ruling:

1. Is anyone who can rely on the exhaustion of the right to [dissemination] copies of a computer program a ‘authorised purchaser’ within the meaning of Article 5(1) Directive 2009/24?
2. If yes to the question first: whether the right to [dissemination] copies of a computer program exhaustive according to Article 4(2) Directive 2009/24 […] to copy by [download] the program from the internet to a data carrier with the consent of [the copyright entity]?
3. If yes to the question second: whether anyone who has acquired a "used" software licence can rely on a "as an eligible buyer" in relation to the preparation of a copy of the program, Articles 5(1) and 4(2) Directive 2009/24, to the exhaustion of the right to [dissemination] a copy of the computer program drawn up by first the buyer by [downloading] the program from the Internet to a data medium with the consent of [the copyright holder], if first Did the buyer delete his copy of the program or not use it?

The Court of Justice of the European Union has decided to reply to second question First,.

It concerned whether and under what conditions downloading a copy of the computer program authorised by the copyright holder from the Internet could lead to the exhaustion of the right to distribute that copy within the EU within the meaning of Article 4(2) Directive 2009/24.

According to the CEU, there are several possible interpretations Article 4(2) Directive 2009/24.

By one of them Article 4(2) could be interpreted as entailing the legal consequences of exhaustion of the right to distribution from first the sale of a copy of a programme and does not necessarily imply the placing on the market of a physical copy of that programme.

Alternatively Article 4(2) could be used by analogy for the sale of a computer program by online transmission. This would result from an unintended gap in the Directive that does not regulate or foresee the transmission of on-line computer programs.

third an interpretation would mean that Article 4(2) would not apply as the exhaustion of the right to distribute under this provision always implies the placing on the market of a physical copy of the programme by the copyright holder or with his consent. In other words, the authors of the directive deliberately refrained from extending the provision of exhaustion to the transmission of computer programs online. In this respect

The Court found that, in order to determine whether the right of the rightholder to distribute is exhausted, it is first necessary to examine whether the contractual relationship between the rightholder and its client can be regarded as ‘first sale of [...] copies of the programme’, as defined Article 4(2) Directive 2009/24.

At the same time, the Court found that the concept of ‘sale’ referred to under Article 4(2) Directive 2009/24, should be considered as an autonomous concept of European Union law, which must be interpreted uniformly throughout the EU. The Court has relied on the widely accepted and broad definition of this term as ‘an agreement whereby a person, in return for payment, transfers to another person his property rights to a material or intangible property belonging to him’.

Therefore, a trade transaction leading, according to Article 4(2) Directive 2009/24, until the right to distribute copies of a computer program is exhausted, the right to transfer ownership of that copy must be transferred.

According to the Court, this was the case when Oracle downloaded computer programs from the software manufacturer's website.

Indeed, in a situation such as that in the main proceedings, it does not matter whether a copy of the computer program has been made available to the client by the copyright holder by downloading it from the website or by means of a material medium such as CD-ROM or DVD.

In the Court’s view, limiting the application of the exhaustion principle under Article 4(2) Directive 2009/24 only for copies sold on a material medium would allow the copyright holder to control the resale of copies downloaded from the internet and require additional remuneration on any new sale, even if first the sale of the copy has already enabled the rightholder to obtain adequate remuneration. Such a restriction on the resale of copies of computer programs downloaded from the internet would go beyond what is necessary to protect a particular subject covered by the intellectual property concerned.

Moreover, given the conclusion of a service contract to repair and update the original copy, the exhaustion of the right to distribute on the basis of Article 4(2) Directive 2009/24 extend to a copy of the computer program sold in improved and updated form by the copyright holder.

At the same time, the Court held that, where a licence acquired by first the buyer is more than required, the buyer is not authorised because of the exhaustion of the right to distribute on the basis of Article 4(2) Directive 2009/24, only the rights of the user of the computer program corresponding to the number of users specified by him.

According to the Court of Justice, second the question asked had to be answered that interpretation Article 4(2) Directive 2009/24 Whereas the right to distribute a copy of a computer program should be exhausted if the copyright holder who has allowed, even free of charge, to download that copy from the internet to a data medium has also granted, in return for the payment of the price intended to enable him to obtain a corresponding economic value of the copy of the work of which he owns, the right to be unlimited at the time of using that copy.

Regarding the question first and third The CJEU considered that the referring court, when ordering them, actually wanted to determine whether and under what conditions the purchaser of the used computer software licences, such as those sold by UsedSoft, could, as a result of the envisaged under Article 4(2) Directive 2009/24 the expiry of the right to distribute, to be regarded as a ‘authorised purchaser’ within the meaning of Article 5(1) Directive 2009/24, which, in accordance with that provision, is entitled to multiply the computer program concerned. Following a reply to the question second The Court held that since the rightholder cannot object to the resale of a copy of a computer program to which the right to distribute that entity has been exhausted, second the purchaser of that copy and each subsequent buyer are ‘legal purchasers’ of that copy.

In conclusion, according to the TEU, the right to distribute a copy of a computer program is exhausted if the rightholder has allowed that copy to be downloaded from the internet into a data medium in exchange for payment of the price equivalent to the remuneration for the right to unlimited at the time of using the copy.

In the case of resale of a license involving resale of a copy of a computer program downloaded from the copyright entity's website, which was initially granted first the buyer for an unlimited period and in return for payment of the price intended to enable him to obtain a remuneration corresponding to the economic value of the copy of his work, the purchaser of that licence, as any subsequent one, may rely on the exhaustion of the right to distribute and may be considered a legitimate purchaser of the copy of the computer program. However, in order for the law to be exhausted, the initial buyer must deactivate his copy of the software at the time of resale.

The judgment in question was precedent because the previous position of doctrine and jurisprudence was that the institution of exhaustion could only concern copies of works of a material nature. It should be noted, however, that the Court’s ruling in question refers only to interpretation Article 4(2) the software directive, which means that it only applies to computer programs and not to any digital copies of other works (e.g. e-books or video games).

1. The principle of copyright exhaustion and video games – judgment in Nintendo v. PC Box 7

The ruling in the present case is based on the following facts. Nintendo, members of the video game development and production group, sells two product categories for these games, namely portable video game consoles, DS consoles and fixed video game consoles, Wii consoles.

Nintendo has implemented technological measures, namely the authentication system mounted in the consoles and the code encrypted on the medium on which video games protected by copyright are recorded. These measures prevented the use of illegal copies of video games.

Games that are not coded could not be played on any of the two the types of equipment sold by Nintendo. Nintendo stated the existence of PC Box devices which, at the time they were installed in the console, allowed to circumvent the security system mounted on the hardware and use illegal copies of video games.

In other words, the so-called mod chips offered by PC Box were hardware components, allowing to disable the built-in security system and play games and programs on media without Nintendo code. Exclusion of the security system two aspects first allow the use of copies of video games (including those made illegally).

After second, allowed the launch and use of independently created applications and games that were not authorized by Nintendo. Mod chips were sold by PC Box along with a package of such independently created programs.

According to the company's declarations, the launch of such programs was also intended to be the primary purpose of mod chips.

The application for a preliminary ruling was lodged by the Italian Court (Tribunale di Milano) in order to clarify the following points:

1. Is the interpretation Article 6 Directive 2001/29 in connection with the recital 48 Whereas the protection of technological safeguards related to works or objects covered by copyright should also extend to a system manufactured and sold by the same company under which a device was installed on hardware to be identified on a separate vehicle containing a protected work (video game produced by the same company as by operators) third, entities of rights subject to the protection of works) and an access code in which the absence of the said work cannot be played and used under that system, which, together with the device which forms part of it, thus excludes all interoperability with complementary devices and products not originating from the company producing the system itself?
2. Is the interpretation Article 6 Directive 2001/29 in connection with the recital 48 the Directive, if necessary to assess whether the use of a product or component to circumvent a technological safeguard measure outweighs other purposes or uses which are commercially relevant, can be made in such a way that the national court should refer to the criteria for assessing the specific purpose assigned to those products or parts by the rightholder to a product containing the protected content, or should, alternatively or complementaryly, refer to quantitative criteria based on the scale of the compared uses or qualitative criteria linked to the nature and importance of such uses?

The questions of the national court were therefore intended to determine two lines. After first, or protection based on Article 6 Directive 2001/29 only part of the security system recorded on the medium (i.e. a special code preventing the use of illegal copies of video games) or elements of the system built into the console is subject. After second, whether account should be taken of the manufacturer's declarations or actual use when assessing the intended use of the security disposal measures.

In the judgment of 23 January 2014 The Court recalled that video games are a complex material not only covering computer software, but also graphic and audio elements, which, despite being encoded in the programming language, are intrinsically creative.

The original computer programs are protected by copyright, to which the above directive refers, as they are an expression of their author's own work.

This proposal is particularly important as it seems to narrow down the scope of the Software Directive and, most importantly, confirms the nature of the lex specificis of the Directive in relation to the InfoSoc Directive.

As Advocate General Eleanor Sharpston stated in her Opinion, the specific nature of the Software Directive means that its provisions take precedence over the provisions of the InfoSoc Directive, but only if the protected material falls entirely within this scope first.

The implications of this statement are particularly relevant for the video game industry as it appears to limit the possibility of applying the conclusions that the TSUE has reached in the UsedSoft judgment to subjects falling exclusively within the scope of application Directive 2009/24, i.e. only for computer programs.

As regards the relationship between the protection of computer programs and the protection of other categories of work, the TEU pointed out explicitly that Directive 2009/24 is lex specialis in relation to Directive 2001/29. According to Article 1(1) Directive 2009/24 the protection provided for is limited to computer programs.

In the meantime, the order for reference shows that video games, such as those which are the subject of the main proceedings, are a complex material covering not only the computer program, but also graphic and audio elements, which, even though they have been encoded in the programming language, are intrinsically creative, not capable of referring solely to this code.

To the extent that the video game, in this case its graphic and audio elements, contributes to the originality of the work, they are, together with the whole work concerned, protected by copyright under the regime established by Directive 2001/29.

It can be concluded that, from the point of view of copyright, the audiovisual layer of the video game should be assessed separately from the layer of the computer program and protected on a different basis – due precisely to Directive 2001/29. Where a particular form of operation of such a complex whole affects both layers, it is necessary to apply this Directive, which provides a higher level of protection.

In this case, this higher level is provided by the provisions Directive 2001/29 and therefore they should be applied to the case. As a result, this may mean excluding under EU law the possibility of a second-hand video game market that has been ‘only’ licensed (e.g. on a gog platform) rather than sold to the user in the box version.

The Court further concluded that legal protection is granted only to technological measures aimed at preventing or eliminating unauthorised reproduction, making works publicly available and making them public or distributing works for which the rightholder's consent is required.

This legal protection must respect the principle of proportionality and should not prohibit devices or activities the commercial purpose of which is different from circumventing technical security for unauthorised purposes.

The Court stressed that the assessment of the scope of the legal protection of technological measures cannot be based on the intended use of the console by the rightholder, but rather on the purpose of the devices used to circumvent the safeguards, taking into account, as the case may be, the manner in which those devices are actually used by persons third.

The Court therefore invited the national court to examine whether other effective safeguards could, while still ensuring a comparable level of protection of the rights of the rightholder, constitute less interference in the actions of individuals third or to impose less restrictions on these activities.

To this end, the national court should take into account the costs associated with the different types of technological measures, the technical and practical aspects of their implementation and the results of the comparison of the effectiveness of these different types of technological measures in the protection of the rights of the rightholder, but it should not be absolute.

Response to second the question is addressed by some commentators in such a way that it opens the way to challenge ‘excessive’ technical safeguards in the context of the objective which these safeguards are actually seeking, i.e. not only to limit copyright infringements, but also market control or restriction of competition.

1. Possibility to rent a digital copy of the work - judgment of the CJEU in Vereniging Openbare Bibliotheken v Stichting Leenrecht 8

The reference for a preliminary ruling was for interpretation Article 4(2) the InfoSoc Directive and Article 1(1), Article 2(1) point (b) and Article 6(1) Directive on rental and lending of intellectual property[9] and has been presented to the CJEU in a dispute between the Vereniging Openbare Bibliotheken (a public library association, hereinafter referred to as ‘VOB’) and Stichting Leenrecht (a lending law foundation, hereinafter referred to as ‘Stichting’), concerning a possible breach of the exclusive lending right in question under Article 1(1) Directive 2006/115.

The ruling came in the following factual state. Libraries in the Netherlands lend paper books and in return pay the Stichting Foundation some flat-rate amount. Stichting distributes the collected remuneration to rightholders.

The amount of remuneration for the loan shall be determined by Stichting Onderhandelingen Leenvergoedingen (hereinafter referred to as ‘StOL’). In 2010 STOL eventually decided that the electronic lending of the digital book was not exempted from this remuneration.

The Dutch Government then drew up a draft Library Act, which provides for the creation of a national digital library for the use of electronic digital books at a distance. This project was based on the premise that the electronic lending of digital books was not exempted.

The VOB challenged this bill and brought an action before the court.

In those circumstances, Rechtbank Den Haag (the Hague Court) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

1) Is Article 1(1), Article 2(1) point (b)

and Article 6(1) Directive 2006/115 it must be interpreted as meaning that “the loan” within the meaning of those provisions also means the transfer to the copyrighted use of novels, collections of short stories, biography, travel books, children's books and youth literature which are not intended to achieve a direct or indirect economic or commercial benefit and is made available to the public by an institution in such a way that:

• • a copy in digital form (reproduction A) shall be placed on an institution server with the possibility of multiplying this copy by the user by downloading to his own computer (reproduction B),
• • the user's copy of the download (reproduction B) cannot be used after a certain period of time; and
• • Other users cannot download copies (reproduction A) to their computer during this period?

1. If on question first the answer is yes or no Article 6 Directive 2006/115 or any other provision of Union law opposes Member States to impose restrictions on the right of lending in question under Article 6 Directive 2006/115, with the condition that a copy of the work (reproduction A) made available to the institution is placed on the market by first sale or other first transfer of ownership of that copy in the Union by or with the authorisation of the rightholder within the meaning of Article 4(2) Directive 2001/29?
2. If on question second the answer to the question whether Article 6 Directive 2006/115 lays down other requirements as to the origin of the copy made available by the institution (reproduction A), for example, that the copy comes from a legal source?
3. If on question second the answer is yes or no Article 4(2) Directive 2001/29 should be interpreted as meaning that first sale of items or others first transferring property within the meaning of this provision also means temporarily unlimited transfer to the use of digital copies protected by the copyright of novels, collections of short stories, biography, travel books, children's books and youth literature, which is made by downloading online?

In the judgment of 10 November 2016 The Court held that Article 1(1), Article 2(1) point (b) and Article 6(1) Directive 2006/115 it must be interpreted as meaning that the term ‘loans’ within the meaning of those provisions includes the lending of a copy of a digital book, where this lending is made by placing that copy on a public library server and allowing the user to multiply the said copy by downloading it to his own computer, where only the borrowing period can be downloaded one a copy, and after that period the user is no longer able to use the copy he has downloaded.

The CJEU further pointed out that the digital loan clearly states one from new forms of exploitation and thus making it necessary to adapt copyright to new economic phenomena. In addition, the exclusion fully from the scope of application Directive 2006/115 digital lending would be contrary to the general principle of ensuring a high level of protection for authors.

The Court then examined whether the public lending of a digital copy of the book in the model "one copy, one user’ may fall within the scope Article 6(1) directives.

In that regard, the Court notes that, given the importance of publicly lending digital books and in order to ensure both the effectiveness of the exception to public lending in question under Article 6(1) Directive and the contribution of this exception to the promotion of culture cannot be excluded that this article may apply if an operation by a public library, inter alia because of certain conditions under Article 2(1) point (b) This directive has essentially similar features for the lending of printed works.

This is the case when a digital copy of the book is borrowed in accordance with the model ‘one a copy, one user’. The Court therefore concluded that the concept of ‘borrowing’ within the meaning of the Directive also covers lending of this kind.

Moreover, the Court stressed that Article 6(1) Directive 2006/115 in connection with the recital 14 that Directive shows that copyright in the field of public lending rights must be protected and in the light of the requirements resulting from the general principle requiring authors to have a high level of protection, it only provides for a minimum threshold for the protection of authors required during the implementation of the derogation on public lending. It follows that nothing prevents Member States from laying down additional conditions, where appropriate, which may strengthen copyright protection, going beyond the scope of protection expressly provided for by that Directive.

Importantly, both Advocate General (AG) Maciej Szpunar, who drafted an opinion on the matter and the TEU, excluded that addressing the issue of digital exhaustion under the InfoSoc Directive would be relevant to the answers to questions raised by the national court.

In this context, the Opinion of the Advocate General is particularly interesting. After first, Advocate General rejected the idea that the judgment in Allposters 10 may contest or restrict in any way the conclusions resulting from the judgment in Usedsoft.

AG Maciej Szpunar stated that this first the judgment concerns the transfer of the work by chemical process rather than digital, directly from a material medium (paper) to another material medium (paper).

It was in this context that the Court ruled in that judgment that, when providing for the right to distribute, the Union legislature wanted to give the authors control first the placing on the market of any material object in which their work is expressed, and the replacement of the medium entails the creation of a new object (material), and therefore it is not possible to talk about the exhaustion of the right to distribute.

However, no element of the case concerned whether the exhaustion of this right could be due to the transfer of ownership of the digital copy of the work[11].

Furthermore, the Advocate General indicated that Directive 92/100 was adopted earlier than Directive 2001/29 (i.e.

InfoSoc Directive), and that the latter, according to its recital 20 and Article 1(2) point (b), leaves unchanged the existing provisions of Union law concerning, inter alia, the right of lending provided for in Directive 92/100 (uniform in Directive 2006/115) and in no way affects them.

The latter Directive therefore constitutes lex specialis in relation to Directive 2001/29. Furthermore, the same argument was raised in the case which led to the judgment of UsedSoft and the Court referred to it in a similar manner.

Thus, classifying the use of a digital book as a ‘loan’ within the meaning of Directive 2006/115 does not conflict with Article 3 Directive 2001/29 12 .

AG Maciej Szpunar also referred, in his opinion, to the argument raised in particular by the French Government that the difference in treatment — from the value added tax point of view — of books on a material medium and books distributed in the form of downloads allowed by the Court in the judgments of the European Commission against the French Republic 13 and European Commission v Grand Duchy of Luxembourg 14 , indicates that these two The characters of the books are not equivalent.

However, the Advocate General noted that the issue raised in the case under consideration did not concern whether paper and digital books were comparable as such, but whether the lending of digital books was equivalent to the lending of traditional books. Consequently, the Advocate General concluded that from this point of view these two loan forms are equivalent in terms of characteristics that are relevant and of objective importance[15].

Finally, AG Szpunar pointed out that this distinction between paper books and digital books from a tax point of view raises serious questions about compliance with the principle of neutrality, which is an expression of the principle of equal treatment in the field of taxation[16].

The Ombudsman also noted that the Commission published a VAT Action Plan which explicitly provides for the adjustment of the VAT rate applicable to digital books and magazines to the rate applicable to paper books.[17].

According to the Ombudsman, this approach confirms the Commission’s position also in the case under consideration that digital and paper books are in fact equivalent[18].

Although the new approach to VAT rules for electronic publications does not have a direct link with copyright, the European Commission adopted 1 December 2016 The VAT action plan is another step towards proposing that analogue and electronic copies of works can be treated in the same way.

This principle of equal treatment may not be limited to the area of VAT legislation. In any event, it should also be recalled that the package proposed by the Commission does not remove electronic publications from their qualifications as electronic services, but rather establishes an exception to their treatment as such.

5. Summary

While there is no doubt about the possibility of reselling material media such as books, CDs or DVDs on the secondary market, the answer to the question of whether there can be a legitimate secondary market for digital copies of works such as ebooks, music and videos downloaded from the internet is much more difficult and, at least at EU level, there is no clear position yet.

The analysis of the case law of the CJEU presented in this study shows that at least to the end 2016 issue related to the existence (or not) of the principle of the exhaustion of copyright to digital copies of works other than computer programs, i.e. Under the InfoSoc Directive, it remained unresolved.

This issue is particularly complex, both for practical and legal reasons. After first, The significant differences between material and digital copies of the work should be pointed out. Unlike analog copies (e.g. books), a digital copy of the work is generally not subject to any significant degradation. This means that even repeated reading of the same book in the digital edition will not affect the quality of your copy. The same cannot be said about a physical copy of the book.

Another argument sometimes put forward to highlight the differences between analogue and digital copies is that more control over the transfer of material property can be exercised.

In this context, it is often claimed that when a digital copy of a work is transferred, it is not possible to make sure that the person transferring a copy of the work does not keep its original at the same time.

In addition to technical considerations, the legal framework also seems ambiguous in this respect, as is the result of the evolution of the case-law of the CJEU presented in this study.

Commentators In 2016 stressed that technological arguments against allowing the principle of digital exhaustion are becoming weaker due to the development of anti-copying technologies (including the possibility of using blockchain technology to "track" digital copies of works).

However, from the case law of the EUS up to one year 2016 It should have been concluded that digital copies of works were not, in principle, subject to the exhaustion of the law, but that the exception to this principle was digital copies of computer programs which were exhausted[19].

In 2016 commentators indicated that digital exhaustion could become one of those issues that the law has not clearly resolved in due time but which can ultimately be compensated by technological progress and changing consumption patterns.

Note: In the second Part of the article will discuss the subject matter of the case law of the TSEU on derogations from the right to reproduce digital copies of works and the lack of the principle of the exhaustion of copyright to digital copies of works under the InfoSoc Directive.

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