Exhaustion Principle & Right of Making Works Available to the Public PDF

➢ Excursus: Exhaustion principle & right of making works available to the public Section 19a Right of making works available to public （没有规定 digital exhaustion） ʻRight of making works available to the publicʼ means the right to make the work available to the public, either by wire or wireless...

➢ Excursus: Exhaustion principle & right of making works available to the public Section 19a Right of making works available to public （没有规定 digital exhaustion） ʻRight of making works available to the publicʼ means the right to make the work available to the public, either by wire or wireless means, in such a manner that members of the public may access it from a place and at a time individually chosen by them. ("The right to make the work available to the public" means the right to make the work available to the public by wire or wireless means so that the public can access the work at a place and time of their personal choice.) Section 17 Right of distribution (Right to allocation -reflects the principle of exhaustion of rights) (2) Where the original or copies of the work have been put into circulation by sale with the consent of the person entitled to distribute them within the territory of the European Union or another Contracting Party of the Agreement on the European Economic Area, their dissemination is permitted, except by means of rental. The copyright is exhausted (Section 17 of the German Copyright Act provides for the author's right of distribution of the original or a copy of his work, i.e., "the right to make available to the public or to trade in the original or a copy of the work". The right of distribution is limited by the principle of exhaustion, i.e. the author loses the right of distribution of the original or copy of the work when the author or his licensor makes it legally available to third parties in any way. For distribution of tangible goods we have the exhaustion principle, § 17 of the German Copyright Act.) However, Section 19a of the German Copyright Act does not contain an exhaustion of rights provision for data distribution, meaning that there is no automatic right to re-sell or distribute digital copies as there is for tangible copies. Distribution and re-sale of digital works is often limited or controlled by specific license agreements, terms of service or digital rights management (DRM) technologies, which may restrict or control the use and transfer of digital content. The exhaustion doctrine applies to software and data works, with some exceptions and limitations. For example, the exhaustion doctrine does not apply if the software is made available through an Internet download rather than a physical medium. The exhaustion principle also does not apply if the data work is made available for rent rather than for sale. Directive 2001/29/EC Certain aspects of copyright and related rights https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32001L0029 Article 3 Right of communication to the public of works and right of making available to the public other subject-matter 51 1. Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them. 2. Member States shall provide for the exclusive right to authorise or prohibit the making available to the public, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them: (a) for performers, of fixations of their performances; (b) for phonogram producers, of their phonograms; (c) for the producers of the first fixations of films, of the original and copies of their films; (d) for broadcasting organisations, of fixations of their broadcasts, whether these broadcasts are transmitted by wire or over the air, including by cable or satellite. ➢ CJEU C-128/11 – Used Soft: The distribution right is exhausted for software purchased through download 根据欧洲法院的案例通过下载软件则权利用尽 - Argument: Interpretation of Art. 4 (2) Computer Programs-D => “Sales” also include online distribution, comparable economic and functional situation (= There is no difference in handing over the software on a physical data carrier or via download） ➢ § CJEU C-263/18 – Tom Kabinet: The right of making available to the public is not exhausted for eBooks purchased through download (access to ebooks by download, rights not used up) - Argument: Used Soft case law is not applicable here, because eBooks fall within the scope of application of the InfoSoc-D and not within the Computer Programs-D - No comparable economic and functional situation: Unlike tangible books, intangible eBooks are not degraded by use => they rather provide for “a perfect substitute for new copies” -Solution: right of making available to the public (Sec 19a GCA) does not exhaust with digital Distribution (Access to the public in digital form, non-exhaustion of rights) 【 Summary 】 According to the ECJ judgment, sofetware applies the exhaustion principle and can be resold, such as video game software, etc., but the exhaustion principle does not apply to e-books and music downloaded from the Internet, etc., which cannot be resold again. ➢ 关于 exhaustion principle 的 Summary： ⚫ ⚫ Distribution right, Sec 17 (2) GCA => Exhaustion (+) (be applicable) exhaustion principle Distribution right of software => Exhaustion (+) (be applicable) exhaustion principle 52 ⚫ Right of making available to the public, Sec 19a GCA => Exhaustion (-) (inapplicable) exhaustion principle （Electronic distribution, e.g. ebooks） ➢ Follow up problem: Exhaustion with product, which consist of software and other digital content (i.e. computer games which include software, musical works, photographic/cinematographic works)? subtitle - Lecture (teacher's point of view)：not allowed to resell your ebook, you're not allowed to resell the music you download or whatever. what happens if we have a product, if we have one product that consists of software and or other due to some needs? For example, a computer game, consists of video sequences of music and so on, but also on the software. You can resell this whole computer game, you must be allowed to do that, and especially on the grounds copyright. Now we have different rules for software and for making available to show items to the problem. differentiate between the software component and the video for some component. And it says since the software component does not exhaust, you can resell the software component since the right of making it available to the public, however, does not exhaust sell video and audio scenes. It doesn't make sense at all from my point of view because you can't sell that computer game, at least not if you want if you really want to play it in the end, cuz can only sell the software but not really an audio doesn't make sense at all from that ever. 4.5.2 Right of communication to the public Section 23 Adaptations and transformations (1) Adaptations or other transformations of a work, including, in particular, of a melody, may be published or exploited only with the author’s consent. If the newly created work maintains sufficient distance to the work used, this does not constitute adaptation or transformation within the meaning of sentence 1. ⚫ Editing rights, Sec 23 GCA vs. Editor’s copyright, Sec 3 GCA 【subtitle】 Editing right which is laid down in section 23. So you have the right to edit some, this has to be has to be distinguished from the editor's copyright. The editor, the person who edits a, the previously existing word gets his own copyright on that editing work. Editing right, the right to edit something and edit copyright and own copyright for the person who edits ，section 23 versus section 3. This has to be distinguish. Comprehension：According to Article 23 of the GCA, the right to edit refers to the right of an editor to make modifications such as adaptations, deletions, additions, etc. to a work. This means that an editor can edit a work, including modifying, deleting or adding to it, in order to make it fit a specific need or objective. The right to edit is usually associated with a publishing contract, whereby the editor can make changes to the work as agreed. 53 On the other hand, according to Article 3 of the GCA, an editor's copyright refers to the copyright of the independently created part of the work created by the editor in the exercise of his or her editorial powers. This means that when editors make edits, if they add original content to the work, then they can claim copyright on that content. This is a right that editors have as creators. Therefore, editorial rights and editor's copyright are two different concepts. Editorial rights relate to the right to make changes and edits to a work, whereas editorial copyright refers to the copyright of original content created by an editor in the exercise of editorial rights. ⚫ Original author can determine whether and how is work may be published or exploited in a modified form ⚫ Legal requirement: approval/consent of the original author ⚫ Legal consequence: Editor is restricted in his rights of use (not in the copyright protection itself) Exploitation/publication of adaptions/transformations only with consent of the original author，Exception no. 1: Sec 23 (1) p. 2 GCA => newly created work maintains sufficient distance from original work => no consent needed (The first exception, according to section 23 (1) (2) of the German Copyright Act (GCA), does not require a license if the newly created work remains sufficiently distinct from the original work. This exception allows for the creation of a new work that is sufficiently separate from the original work to avoid copyright infringement of the original work. In this case, if the newly created work is sufficiently different from the original, the editor may adapt or transform it without obtaining permission from the copyright holder. However, there is a need to ensure that the newly created work is clearly distinct and independent from the original work to avoid it being considered as an infringement of copyright。) - Exception no. 2: Sec 23 (2) no. 1-4 GCA => Consent is even required for the production of the adaption or transformation. So even if these editor works have a sufficient distance still need the author's consent. Sec 23 (2) no. 1-4 GCA In the case of 1. the film version of a work, 2. the execution of plans and drafts of an artistic work, 3. the reproduction of an architectural work or 4. the adaptation or transformation of a database work, the production of the adaptation or transformation already requires the author’s consent. Consent is required even for the production of adaptations or conversions. So, even if these editors are sufficiently distant from the work, the consent of the author is still required. 54 - The German Copyright Act (GCA), section 23, paragraph 2, provides an exception to the need for permission for adaptations or transformations. This means that an editor needs permission from the copyright holder before creating an adapted or transformed version of a work. Section 23 (2) of the German Copyright Act specifically lists four situations (numbered 1-4) in which permission is required for adaptation or transformation. These cases include translating a work into another language, converting a work into a different art form, creating a reduced version of a work, or creating a derivative work based on the original work. In these cases, editors need to obtain the express permission of the copyright holder before making an adaptation or transformation. Unauthorized adaptations or conversions may violate the exclusive rights of the copyright holder in the work. - Exception no. 3: Sec 23 (3) GCA => Adaption/transformation exclusively due to technical reasons => Sec 23 (3) GCA not applicable If the adaption of transformation is exclusively necessary due to technical reasons, then we do not be content. For example, if we if we are architectural role and we want to digitize all of our architectural plans, for example, then we actually would need our with the content of the author due to section 23, subsection to number 3. However, because this is necessary for technical reasons. Okay, so do we have a basic idea when we need the content and when we don't need it, then we're already done with the exploitation rights. Explanation ： Section 23 (3) of the German Copyright Act (GCA) provides an exception to the editor's right for adaptations or transformations made solely for technical reasons. This means that if an editor makes changes to a work for merely technical reasons, such as formatting or layout adjustments, then the provisions of Section 23 (3) will apply and the editor's rights may not apply. In this case, the editor's copyright under Section 3 of the German Copyright Act may not apply if the modifications are made solely for technical reasons. This exception recognizes that certain changes made by the editor may not involve creative input or original expression, but are made for technical or functional purposes. 55