Permanent Downloads and the Resale of Digital Content: Another Exhausting Journey?
The rise of digitally supplied content has created several ambiguities regarding the treatment of such content as goods or services. The shift in the medium of delivery from physical objects to digital formats has raised several questions in the realm of copyright law. The concepts of exhaustion and first sale, the interpretation of which in the Indian context is already arguably confused, now face additional uncertainties and ambiguities. This paper seeks to identify questions that arise in the field of copyright law due to the emergence of this new medium of delivery, such as whether the circulation of digital content constitutes ‘distribution’ or ‘communication to the public’, fair dealing rights associated with such delivery, and other contractual, legal and technology related issues. This paper attempts to answer these questions, relying on both international and Indian sources. In doing so, this paper analyses case law of the EU and USA, to discover the varying positions with respect to digitally supplied content for permanent download and the application of the first sale doctrine and exhaustion, and the resultant implications. This paper also examines the Indian position, against the backdrop of the 2012 Amendment to the Indian Copyright Act, 1957 and a recent Bombay High Court judgment.
The author is a lawyer based in Bangalore, and graduated from the West Bengal National University of Juridical Sciences, Kolkata.