Digital exhaustion of copyright after CJEU judgment in Ranks and Vasiļevičs

In its UsedSoft and Ranks judgments the CJEU interprets the concept of distribution and its digital exhaustion with regard to copyright on computer programs. Both concepts are read in a way that deviates from their meaning concerning copyright on other works.The reasons for that divergence are analysed and criticised. The Computer Programs Directive should be interpreted in conformity with the WIPO Copyright Treaty. Case law should distinguish between the specific rationales that underlie certain aspects of the exhaustion doctrine.The CJEU's autonomous interpretation of the sale condition for exhaustion is unfortunate, among other things because downloaded copies are not goods subject to transferrable ownership. Copyright law is not digital property law. The sale concept is drifting away from its original meaning. Concerning the exceptions to the reproduction right on programs, it is upheld that backups cannot be provided to third parties. Subsequent acquirers of programs by contrast do qualify as lawful acquirers who can benefit from the exception for intended use. Calling on this exception, the Court seems to set course to the recognition of a resale and/or download right of some kind. In sum, the meaning of exhaustion has evolved from a boundary of an exclusive right, over a higher norm to a subjective right of a third party. In reality, the debate could be simplified by looking at rights rather than copies. With regard to the supply of digital content, the simultaneous existence of a material-object and licence contract should be recognised. The former can be a sales or service contract. Online deliveries are services. Whoever holds a right to a service, can principally transfer that right and the licence to third parties. Applying the same rationales that underlie the exhaustion doctrine would mean that clauses preventing such transfers are void. The actual exhaustion doctrine however need not be applied.

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