The plea of applying the exhaustion doctrine to intangible copies of copyrighted artistic works has been extensively discussed within scholar circles. Although, the debate substantially concerns provisions of the international treaties and the explanation of the exhaustion doctrine under European Union copyright law, the subject brings more uncertainties. Under the European Union copyright law the distribution right is exhausted after the first sale with the consent of a right holder. However, there is neither explicit regulation nor decision in regard to the exhaustion doctrine to the online resale of digital goods. As the act of distribution is shifting and fulfilled through digital means these days, the application of the first sale doctrine is challenged. The given work provides with the legal, organizational and technological analysis of the exhaustion doctrine under European Union copyright law and possible scenarios in respect to digital secondary market.

In the past, copyrighted works were distributed exclusively through physical means, while copyright law developed to bestow copyright holder a privilege to decide when and under what circumstances a work should be put into circulation. The first sale doctrine, however, limited that ability in so far as, once a product is sold, copyright owners can no longer control the flow of that particular product, benefiting consumers and society in several ways. Today, as distribution is increasingly shifting into digital, the application of the first sale doctrine is challenged. This work provides for an analysis of the first sale doctrine under EU law and the ECJ case law in matters of digital exhaustion. It is shown that many of the benefits of first sale stem from traditional understandings of what means to own a physical copy and when it comes to the digital environment, the first sale doctrine seems to be undermined, and so do its benefits. It is argued that there is still some room for exhaustion, despite the lack of clarity of the wording of the InfoSoc Directive and Software Directive and the absence from the ECJ to provide for a final interpretation. Further to the analysis, it is shown that the promotion of a right to access and a right to transfer digital copies is still possible, even though they may not be the right answer to the issue of exhaustion in a digital economy by virtue of how market has developed and consumers response to it.

On the 19th of December 2019, the Court of Justice of the European Union ruled: "The supply to the public by downloading, for permanent use, of an e-book is covered by the concept of ‘communication to the public’ ..." This judgment ("Tom Kabinet judgment") solved a long debate whether "digital exhaustion" exists or not, in favour of the latter. This study is dedicated to the analysis of Tom Kabinet judgment and its effects. It analyses the judgment from several perspectives. Firstly it discusses the effects and the importance of Tom Kabinet judgment. Secondly, it analyzes the legal and non-legal arguments of the Court from a critical point of view and argues that a contrary non-contra legem solution existed. Thirdly, this study argues that in the long run, not only the end-users but also the rightholders can benefit from "digital exhaustion" and the existence of a digital secondary market. Therefore, a contrary solution of the case could be beneficial for everyone. As a proponent of "digital exhaustion," the present author offers several legislative policy considerations that are needed to give a new life to digital secondary markets.

The debate of recognition or non-recognition of the digital exhaustion doctrine of the right of distribution for the copyrighted objects other than computer programs has been actively carrying on within the last decades in the EU. The explosive growth of the electronic versions of works and digitalization of the traditional copyrighted objects leads to new questions and challenges about its dissemination and usage by consumers. This work examines and investigates whether, and if so to what extent, the exhaustion principle of the right of distribution can apply to e-books in the online realm after two landmark cases: the UsedSoft case and the Tom Kabinet case. These two cases offer a different interpretation of the exhaustion doctrine in the digital field in relation to the different copyrighted objects, namely digital books and computer programs. It is argued that despite the CJEU’s decision in the Tom Kabinet case and lack of explicit clarity in the EU Directives devoted to the copyrighted objects, there is some room for digital exhaustion of the distribution right for the electronic books. This paper will also analyze the hypothesis that the peculiarities of the book market itself may potentially influence the recognition of the digital exhaustion principle from an economic standpoint. However, it is shown that the digital marketing of the works per se entailing multiple reproductions of the e-files as a technical step of the dissemination process creates new challenges on the exhaustion doctrine application. The paper provides a legal, economic and technological analysis of the EU exhaustion doctrine and its potential admissibility on the second-hand market of electronic books.