The distribution right and the principle of exhaustion through the Court of Justice of the EU case-law for tangible and digital works

Abstract

The distribution right under copyright law, historically tied to tangible copies of works, has become an increasingly complex issue with the rise of digital and intangible works. In recent years, case law and legal doctrine have focused on whether and how this right applies to digital content, raising important questions about whether the principle of exhaustion should be extended to digital works. The principle of exhaustion, which traditionally allowed authors and rightholders to control the first circulation of lawfully disseminated copies of their works, is being reevaluated in the context of the digital environment, where physical copies are no longer involved. This shift is crucial, as it could significantly affect the way authors and rightholders manage the online circulation of their works. This article will not only provide a detailed analysis of the distribution right within the EU but will also explore key Court of Justice of the EU rulings, including the landmark Usedsoft and Tom Kabinet decisions, to examine the evolving application of the distribution right and the exhaustion principle in both tangible and digital contexts. By synthesising the judicial developments, the article will aim to shed light on the potential implications for digital content distribution in the broader online environment.