Online Exhaustion and the Boundaries of Interpretation

It is a common perception that copyright has been struck by a serious crisis of legitimacy. This crisis can be traced to a variety of causes, but the main one would seem to lie in the (over)protectionist drift by which copyright legislation has been affected, and which has led to a radical shift in the balance of interests that has been achieved over time. However, the balancing of interests is not an activity exclusively entrusted to lawmakers, for it also involves judges and legal scholars. This essay explores the ability of the three “legal formants” to ensure that the EU copyright regulatory framework stays fit for purpose in the digital environment by referring to the widely debated question as to whether the digital marketplace is an appropriate context in which to expand the principle of exhaustion of the distribution right. In the first place, a few considerations on the interests protected by the principle of exhaustion are proposed, arguing that there is no reason why this principle should become any less necessary in the online distribution. In the second place, it is considered the way lawmakers and judges have addressed the question of whether and under what conditions a principle of online exhaustion can be recognized. In the third place, it is discussed how some solutions based on a nonformalistic and nontextualist interpretation of the norms can make it possible to overcome the objections that have so far prevented the principle of online exhaustion from being recognized for digital works other than computer programs.