数字环境下首次销售原则的适用困境与出路

首次销售原则实质上是对发行权的行使做出的必要补充，不能扩张用于数字环境中。数字作品转售行为在性质上属于网络传输行为，而非发行行为，无法适用首次销售原则。基于维护著作权人和消费者之间利益平衡以及促进数字作品产业发展的考量，应当根据数字技术的性质特征创设信息网络传播权有限用尽原则，在附条件和附期限的情况下允许消费者转售数字作品，以适应数字作品二手市场的发展需求。

Dilemma of and Solution to the First-sale Doctrine in the Digital Era

As a substantial component to copyright restriction, the traditional first-sale doctrine plays a necessary part in balancing the interests of the author and the consumers and in clearly defining the relationship between the distributing right and the ownership. With the arrival of the digital age, the disseminating and the utility of works have been significantly changed. Courts in the United States and the European Union both reaffirmed in their written judgments their positions on whether the first-sale doctrine could be applied to digital occasions, in which the resale of digital works do not apply the first-sale doctrine due to its infringement of the reproduction right; or that it be unnecessary to distinguish the traditional tangible carrier from the digital intangible carrier since they both should apply the first-sale doctrine. There is no exact item in the Chinese copyright law as the doctrine for the first-sale of distributing rights, nor any case of digital work reselling in the judicial practice. Nowadays, the industry of digital works has boomed in China, both the transaction forms and the utility forms having shown a trend of developing in multiple directions. In addition, the rising trade of second-handed digital works will greatly influence the digital publishing industry. At the time of making the third revision of the copyright law, the in-depth studies are of magnificent value both academically and practically. Through control study and case analysis, this essay makes an insightful analysis on whether the first-sale doctrine could be applied to the digital field, challenges of and solutions to applying it. It is concluded through the analysis on the causes and the jurisprudential basis of the first-sale doctrine that this doctrine supplements and explains the exercise of the distribution right as far as tangible material carriers are concerned, not yet in the digital ones. From a point of essential view, digital network is a system transferring information mainly by copying it, or digital information transference is done by making copies and is a combination of distribution and copying. The resale of digital works is not distribution, but e-transfer instead; therefore it cannot adopt the first-sale doctrine. In the digital age, the adoption of the first-sale doctrine for digital works is related both to the consumers' right protection and to the survival and development of the second-handed digital works industry. Based on balancing the interests of the copyright owner and the consumers and on promoting the digital works industry, the first-sale doctrine should be reformed regarding to the easy-copy-no-loss feature of the digital products. The limited exhaustion principle of information network dissemination right should be set up, allowing the consumers resell the digital products under certain conditions and with certain time limits. Meanwhile, there should be legislative regulations on the resale of digital works, clarifying the hard line between the distribution right and the information network dissemination right and setting up the first-sale doctrine of distribution and the limited exhaustion principle of information network dissemination. In addition, in order to safeguard the application of the limited exhaustion principle of information network dissemination, the burden of proof should be specified and the rule of access control measures should be polished. By integrating the forward-looking and efficiency of legislation, the e-copyright industry and the second-handed digital works industry of China will be convoyed. The innovations of this article are as follows: firstly,it's a system innovation. According to the nature of digital technology, limited exhaustion principle of information network dissemination must be set up as the way-out of the first-sale doctrine application under the digital circumstances, namely the limited exhaustion principle of information network dissemination, i.e., conditions and valid durations are attached to such rights. The essay also made a detailed design for such a mechanism. Moreover, considering the amendment of China's copyright law, the essay puts forward some legislative suggestions correspondingly. Secondly, it is a research made from the first-handed data. This article set forth the realistic need of reform and legislation of the first-sale doctrine under digital circumstances, and analyses its applications in some American and European cases, according to the latest reports about the Chinese digital works industry, namely, The Report of the 2016 Chinese Music Industry Development, written and issued by the Music Industry Promotion Committee under the guidance of the State Administration of Press, Publication, Radio, Film and Television, and The Panoramic Data Interpretation of the 2016 China's Digital Content Production, written and issued by the Tencent Research Institute. Thirdly, the essay holds a new viewpoint and view angle. This article makes an in-depth analysis on the nature of digital work resale in terms of semantics, history, legal hermeneutics and ownership transfer, holding that digital work resale be information network dissemination and that the right exhaustion mechanism be set up for information network dissemination.