On "the Exhaustion Of Distribution Right" Doctrine Of The Software Products

“The exhaustion of distribution right” doctrine is an important principle thatlimited the distribution right of the copyright holders, which contributing the balanceof interests between the copyright holders and the public. With the development of thedigital transmission technology, the protection of the copyright works are more andmore problematical, especially in software works. The copyright holders of thesoftware works tends to utilize the license agreements to strengthen protection, whichconflicting with the “the exhaustion of distribution right” doctrine. This issue has along debate which need research and solutions. However, there is lack of theoreticalresearch and judicial practice on the application of “the exhaustion of distributionright” doctrine in China. Therefore, the purpose of this thesis is providing a methodfor judging the application of “the exhaustion of distribution right”, for benefiting thecopyright law system under the condition of new technology.This thesis is divided into following four parts apart from the Introduction and theConclusion:Part one discusses the present situation of the application of “the exhaustion ofdistribution right” doctrine on software products. This Part begins with the basictheory of the application of doctrine, traces the origin and the value of the doctrine, and then analyzes the conditions of the application. Following the aforesaiddiscussion, this part make a conclusion that only the physical software productsentitled to be discussed the application of the doctrine, and the focus of theapplication in practice is the validity of the license terms which limited the ownership.Part two analyzes the application of three situations involved the subsequentassignment to the specific software products based on the consideration of theinterests between the copyright holders and the related public, concluding a judgmentof the feasibility and rationality of the application of doctrine. This is the premise ofthe judgment hereinafter on the application of the doctrine.Part three make a discussion about the validity of the license terms which limitedthe ownership. For the situation that does not affect the legitimate interests of thecopyright holders discussed above, we should make a material judgment on theapplication of the doctrine. After the analysis through the theory and cases about theindefinite software license transactions and shortdated license transactions, we coulddetermine whether the restrictive terms get the authorization of copyright law, whichmake a judgment on the validity of the restrictive terms.Part four make a suggestion on the application of “the exhaustion of distributionright” doctrine in China. Based on the above analysis, it is wise to be cautious aboutthe application of the doctrine in judicial practice, and some methods of judgment areproposed. Meanwhile,“the exhaustion of distribution right” doctrine should beexplicitly stipulated, also the judicial experience fixed in the future.