earticle

영어

More works may be gradually circulated under digital environment in the future. When we consider this point, the existing first sale doctrine limited to the transactions of tangible things will need to be extended. This paper has examined the tendency of legislations, precedents and theories in the foreign countries such as the United States of America and Germany. In so doing, the author has tried to suggest the standard of the interpretation and desirable development direction of the first sale doctrine prescribed in the copyright act and computer program protection act. Regarding the first sale doctrine, i.e. the freedom of resale, there currently exists discrimination between consumers who bought a book or CD in bookstore or record store and consumers who bought the same thing through internet. A legal status of a consumer who bought music or movies through digital transmission has been weaker than the person who bought CD or videotapes. The person who bought lawfully music through Internet can record this to CD-R and enjoy the music. But, he may not resell the CD-R as a used music CD to third persons, even if he doesn't want to more enjoy the music. Supposing that more works become digitalized gradually and the sale will be realized not by the traditional transfer of tangible things but by method of transmission, is it desirable that such legal situation has to be continued in the future? Unfortunately, current laws of most countries and international treaties regard this discrimination as rightful. Resale and private reproduction have been recognised as a freedom of consumers of copyrighted works for a long time. Persons who bought a book or CD can reproduce this for private use and can resale this to third persons later. Nobody can criticise any copyright infringement towards such acts. This consumer's freedom has been established like a custom. This consumer's freedom should be guaranteed under digital environment. The transaction ability of copyrighted works that consumers bought once should be guaranteed whether these are in the forms of tangible things or digital forms. Simply because the existence form of works is different, its transaction ability should not be limited by eternal distribution right of the copyright owner. There has been controversies on whether the transmission of digital works should be classified into the category of reproduction right, distribution right or the right of communication to the public. By several reasons, international treaties and most national laws came to classify this act into the category of the newly introduced transmission right as a kind of the right of communication to the public. But classifying it into the transmission right as a kind of intangible rights has caused another problem about the application of first sale doctrine which is subject of this treatise. From such viewpoint that copyrighted works as intellectual creations are sold, it can not be denied that on-line transmission is similar to distribution. It is not important what way the consumer has purchased in determining as to whether the distribution right is exhausted or not.