디지털저작물의 재판매와 권리소진원칙에 관한 비교법적 검토

Abstract

The first sale doctrine allows the owner of a particular copy of a work to dispose of the possession of that copy in any way by selling it. Under the doctrine, anyone can dispose of his books, records, and films purchased in the market by reselling them without the copyright holder’s permission. With the development of digital technology, novels, music, and movies have become available in digital form, enabling the direct trading of digital works online. As a result, it began to be discussed whether the first sale doctrine may be applied to online transactions of digital works, and as computer programs were also recognized as digital works, the discussion of the first sale doctrine for digital works became wider. This provision of the first sale doctrine limits only the distribution right; it in no way affects the reproduction right. Thus, the first sale doctrine does not allow the transmission of a copy of a work (through a computer network, for instance), because, under current technology, the transmitter retains the original copy of the work while the recipient of the transmission obtains a reproduction of the original copy (i.e., a new copy), rather than the copy owned by the transmitter. Therefore, the transmission would constitute an infringement of the copyright owner's reproduction right. In the United States and Europe, the courts ruled if the first sale doctrine would be applied to the online resale of digital works. European Court of Justice ruled that the first sale doctrine may be applied to computer programs. The analysis of these rulings comes to a conclusion that whereas the traditional first sale doctrine focuses on "sales," the first sale doctrine in online resale is determined by the creation of a new copy. That is, the applicability of the first sale doctrine in online resale depends on whether a new copy is made during the transmission process.