Applicable Analysis Of The Exhaustion Of Distribution Rights Principles In Digital Works Sales

In the pre Internet era,exhaustion of distribution rights principles are important regulating mechanism to balance the interests between the copyright owner and the public,and these will be the legal basis of the establishment and development of the secondary market for the traditional publications.These principles stipulates that the distribution rights of the original or copy of a legally produced work will be"exhausted" after first sale and the buyer has the right to conduct subsequent disposition to the originals or copies of the work without the copyright owner's consent,including the transfer to the third-party.However,with the development of digital technology and the arrival of the universal Internet era,the traditional copyright works began to move away from the tangible carrier,transformed into digital works,and was saled by the Internet.The emergence of digital works had made the right boundary of the publishing right inexplicit.The lack of tangible carrier,the ownership of the first sale works,the copy right of the resale works and the infringement to the information network spreading right all made it difficult to apply the exhaustion of distribution rights principles in the sale of digital products.Both the courts in the United States and the European Union have different views on this issue,and there is no clear provisions in the legislation and practice in china.Therefore,it is necessary to make further academic study to the issues of the application of the exhaustion of distribution rights principles in the sale of digital works.Appling exhaustion of distribution rights principles in the sale of digital works can effectively prevent the copyright monopoly caused by digital technology and protect consumers' privacy and encourage consumers to participate in the sales of digital works.This can not only effectively promote the accessibility to secondary sales market,but also conform to the development of the digital culture in china.Chinese legislation should clearly define the exhaustion of distribution rights principles,and the system of exhaustion of distribution rights principles in the sale of the digital works should be constructed on this basis.For designing a reasonable system to the exhaustion of distribution rights principles,the author elaborates the concept,theoretical basis and the applicable elements of exhaustion of distribution rights principles,and specifically analyses the application to exhaustion of distribution rights principles according to the typical cases in the United States and the European Union and interpretation of the American legislative attempts.Distribution rights should take the transfer of ownership as the core,and distinguishing the license and sale should be judged by comprehensive analysis of the consumption and use behaviors.The digital distribution behavior should constitute the distribution behavior based on the copyright law.The development of technical protection measures can ensure the absolute number of copies of digital works unchanged in the resale.The key to distinguish the distribution rights and the Information network communication rights is the transfer of ownership,and the resale of digital works should be defined as the distribution behavior.Finally,based on the balance of interests,paper author constructs the legislative framework of exhaustion of distribution rights principles in the sale of digital works from four aspects including the adjustment of the definition of distribution rights,the reasonable standard of the licenses,the application of technical protection measures and the rational restriction to copy right,and the establishment of digital resale fee.This provides reference for the amendment of Chinese Copyright Law in order to achieve the rational allocation of personal interests and public interests.