Wiebe, Andreas --- "The Economic Perspective: Exhaustion in the Digital Age" [2010] ELECD 519; in Bently, Lionel; Suthersanen, Uma; Torremans, Paul (eds), "Global Copyright" (Edward Elgar Publishing, 2010)

Book Title: Global Copyright

Editor(s): Bently, Lionel; Suthersanen, Uma; Torremans, Paul

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848447660

Section: Chapter 24

Section Title: The Economic Perspective: Exhaustion in the Digital Age

Author(s): Wiebe, Andreas

Number of pages: 8

Extract:

24. The economic perspective:
exhaustion in the digital age
Andreas Wiebe*

1 INTRODUCTION

Today, there is a lot of talk about crisis. The crisis I will talk about today
has been around for some time. It is the crisis of the exhaustion principle,
the source of which lies in the way digital technology changed production
and distribution of immaterial goods. This crisis will not go away within
a year. Moreover, it brings up the question of whether the exhaustion
principle still makes sense in the information age and if so in what specific
form.


2 INTRODUCTORY CASE1 ­ SECONDHAND
SOFTWARE AS AN EXAMPLE

I would like to take a case as an example that has kept German courts
quite busy over the last three years. It is about so-called `secondhand
software'.
The first licensees of software download the software from the internet
or receive it on a master copy that can be accessed in a local network in the
company. The underlying standard contracts exclude the transfer of the
software or the license without consent of the right holder.
Now, sometimes it happens that the licensee does not need the software
any more, be it because of new software or even bankruptcy. Then he may
be interested in reselling the software. This is the business of an intermedi-
ary who buys the software from the first licensee and resells it to a second
licensee with a rebate of 30­50 per cent. No physical copy is part of the



* Prof. ...