Proposal for a general authorization of resale

The German Verbraucherzentrale Bundesverband e. V. introduces an expert opinion concerning consumer protection regarding copyright including pre-owned software and deduces a “rule for a general authorization of resale” from it. The intention is to avoid the existing unequal treatment of consumer who buy their music, movies, eBooks, software and computer games online via download and them who acquire these products by traditional mediums such as CDs, books or DVDs. Digitally sold products aren’t allowed to be resold and consumers gain huge financial losses because they don’t receive the account of the used product back.

The increasing substitution of the market, traditionally typified by copies of the work of CDs or DVDs, by copies of the work of Downloads first of all benefits the vendor. Although “there is a same interest of legal relations for a free circulation of the copy of work in both cases”. “An unequal treatment isn’t justified by technical reasons or by reasons of protection of trade”, declares the expert opinion.

As in case of material products the consumer has also the right “that minimally a legal position similar to property occurs”. Consequently the conventional usage of products doesn’t need an assignment of license in this case. The licenses aren’t essential for the usage of the product and they are also not essential for the second owner. “As far as for the conventional usage technically founded copies are essential (…) they are permitted legally by limitations on copyright”.

Dr. Till Kreutzer recommends in his expert opinion for the Verbraucherzentrale Bundesverband to introduce a general authorization of resale. “This would cope with the constellation of interests of digital markets.” A circumference of exhaustion on other patent rights becomes dispensable by such an authorization and § 34 isn’t affected, too. Insofar it is irrelevant that according to § 34 Abs. 1 UhrG this would be allowed only by acceptance of the holder of the rights.

The proposal of the Verbraucherzentrale Bundesverband of a general authorization of resale of immaterial copies of the work:

Sec. 17a Resale of works

 

(1) Copies of works which have been placed or made available through a sale by an entitled person within the territory of the European Union or another contracting state of the Agreement on the European Economic Area may be resold by the lawful acquirer provided that the acquirer does not retain any copies.

(2) The resale authorization pursuant to para. 1 exists irrespective of whether the lawful acquirer sells the copy that was acquired from the rights holder or another copy thereof provided that the conditions stipulated in para. 1 are fulfilled. The making available to the public of the copies of the work by the acquirer is not permitted.

(3) Any contractual provision contrary to para. 1 and 2 shall be null and void.

 

During an interview Dr. Till Kreutzer explains the advantages of his proposal: “From different kind of views this would accommodate the fact that times, using habits, methods of disposal and markets consisting of cultural goods of entertainment change. The bad position of user and consumer would be encouraged, there would be more legal certainty in the usage of protected material (especially of the internet) and consumer concerned rules of copyright would be extremely simplified.”

 

Download the whole expert opinion on consumer protection in copyright here (in German).

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