Julien GOMIS (Nomos) reports about an interesting case from France where the Paris court has ruled that the right of exhaustion set out in Directive 2001/29/EC is applicable to the case of downloadable video games.
As it is known, according to Directive 2001/29/EC:
1. Member States shall provide for authors, in respect of the original of their works or of copies thereof, the exclusive right to authorise or prohibit any form of distribution to the public by sale or otherwise.
2. The distribution right shall not be exhausted within the Community in respect of the original or copies of the work, except where the first sale or other transfer of ownership in the Community of that object is made by the rightholder or with his consent.
The grounds for this decision were that every subscriber of the relevant website has an account through which he pays for and downloads the video game on its own computer. After this act, he can use it without time limitations.
This decision is surprising at least because as a general rule of thumb the right of exhaustion concerns material copies of a work. Of course, there is some development in the interpretation of this rule. However, recently the Advocate General of the CJEU, Maciej Szupunara has stated that the download should be considered as a communication to the public and not as a distribution. Thus, within the meaning of European legislation, digital resale should not be affected by the rule of exhaustion of the distribution right.