The First Sale Doctrine On Internet

In the traditional publishing industry background,the first sale doctrine is a restriction to the copyright holders of the control of copies of works.Consequently,consumers can freely resell their legally owned copies,and it also leading to cultural prosperity in the same time.The development of technology not only changed the business model,but also challenged the law.With the continuous development of digital works industry,some issues gradually highlighted.The problem that the first sale doctrine should be to maintain the current situation,or should be derived to the internet environment,become to an urgent problem to be solved.This thesis is divided into three parts: introduction,context and conclusion,and context is divided into five parts.Part one briefly reviews the historical evolution of the first sale doctrine and found that the principle of judicial practice is established in the laws and jurisprudence around the world,although it is different in the system,but essentially the same.Although in Chinese Copyright Law that not clearly stipulate the first sale doctrine in legislation,but its basic spirit is embodied in practice,and scholars have also recognized its value.Part two starts from the promotion of market transactions,and points out that the development of new technology brings challenges to the first sale doctrine,and analysis the reasons why the first sales principle can't be applied now.First,this part observe and compare the changes of business model in the Internet background,and point out that the sale mode is the focus of this paper.Second,from a series of judicial jurisprudence disputes: content providers trying to use the EULAs to add restriction,so that sales behavior into licensing behavior,and the first sales doctrine will lose applicable premise.For the characterization of the first sales behavior,this part point out that crucial point is how to distinguish between “the right of distribution” and “the right to communicate works to the public over information networks”.Finally,from the practical application of the resale of digital works,this thesis analysis the actual dilemma of three business models about the resale of digital works,and points out that even if the first sale doctrine can be applied to the network environment,based on the technical conditions and traditional theory there is also have the possibility of being accused of infringing other rights of the copyright owner,and the practical application of thefirst sale doctrine is less likely.Part three tries to find a response from the nature of the theory based on the above challenges.Firstly,pointed out that the first sale doctrine is independence,rather than subordinate to the distribution right.The first sale as a mean to achieve the balance of interests,played an important role in limiting the right.And then analysis the traditional function of the first sale doctrine,then suggests that in the world of the Internet,there will develops more new functions.According to this,the first sale doctrine in the Internet environment have feasibility and necessity.Under the condition that the " the right to communicate works to the public over information networks" controls the Internet dissemination behavior,the first sale doctrine as the right restriction should play the same role that in traditional background.Secondly,the interpretation of the restrictive clause in the EULAs can not simply proceed from the meaning of the terms of the thesis,but also should take into account the interests of consumers,and consider the transaction to proceed with comprehensive judgments.Finally,this thesis shows that the reproduction process does not belong to the scope of the adjustment of the scope of the right of reproduction,in this situation,a prerequisite is that no additional copies are generated.Part four discusses the specific conceive of the application of the first sale doctrine.The application of the first sale doctrine in the Internet environment requires not only legislation as a basis,but also need other conditions to achieve the purpose of balance of benefits.This thesis put forward resale compensation fee for digital works after analysis and comparison of the current view.Part five put forward some suggestion on the application of the first sale doctrine in China.After combined with the aforementioned theories and system construction analysis,emphasize that it is necessary to specify the first sale doctrine in Chinese Copyright Law.