4 - Digital Exhaustion in the EU and the US

Summary

The previous chapters have introduced the development, the values, and the policy considerations of the doctrine of exhaustion. In short, the doctrine was developed into a balancing mechanism of analog copyright law. The rapid technological changes necessitated international and domestic legislative modifications. Many of these rules (e.g., TRIPS, WCT, EU directives, and the amendments of the USCA) had direct relevance for the doctrine, too. The introduction of these provisions has, however, preceded the age of platforms. On the one hand, the economic rights continue to be applied in a technologically neutral way and are interpreted broadly. Hence, rightholders are granted a high level of protection. On the other hand, limitations and exceptions are treated in a technologically dependent way (tending toward the exclusion of many digital uses from the scope of permitted uses) and are interpreted narrowly. The adequacy of the doctrine’s balancing role has been seriously questioned in the digital age.