The rapid advancement of digital technology has transformed the mode of existence for copyrighted works from tangible objects to intangible data. Consequently, the paradigm of copyright transactions has shifted drastically from the “ownership of goo...
The rapid advancement of digital technology has transformed the mode of existence for copyrighted works from tangible objects to intangible data. Consequently, the paradigm of copyright transactions has shifted drastically from the “ownership of goods” to “access to information”. Traditional copyright jurisprudence has sought to balance interests by limiting the copyright holder’s right of distribution and guaranteeing the owner’s right of disposal through the “principle of exhaustion” (or first sale doctrine). However, this principle, which is premised on the transfer of tangible goods, faces significant challenges and limitations in the digital environment.
The purpose of this study is to examine the applicability of the exhaustion principle to digital works, with a specific focus on “game works”, and to identify the legal and economic contradictions inherent in the current licensing structure. To this end, related laws and major judicial precedents in South Korea, the United States, and the European Union (EU) were compared and analyzed. In particular, this study provides an in-depth examination of the French Supreme Court’s ruling in UFC-Que Choisir v. Valve, which has become a watershed moment in recent discussions on digital exhaustion.
The major findings of this study are as follows:
First, the current copyright legal system limits the subject of exhaustion to tangible objects; thus, it was established that this principle does not apply to the online transmission of intangible digital works. Courts in the U.S. and Europe strictly limit the principle of exhaustion for digital works, citing the issue of “reproduction” accompanying the transmission process and the non-degradability of digital goods.
Second, it was noted that the digital content market is structured around “license” agreements rather than “sales”. Copyright holders utilize End User License Agreements (EULA) to define users not as owners but as “subscribers” or “licensees”, and insert anti-resale clauses to fundamentally block the application of exhaustion. This study points out that such practices conceal the “substance (sale)” through “form (license)” and result in the neutralization of public law order via private contracts.
Third, through the analysis of the Valvecase, it was confirmed that the European judiciary defines video games as “complex works” rather than simple software, thereby denying the exhaustion of rights for digital works. The court adopted a conservative stance by recognizing the validity of anti-resale clauses in platform terms of service, implying that the user’s status of ownership is legally denied in the digital market.
Accordingly, this study proposes a transition of the existing legal structure to focus on the transfer of ownership and the substance of transactions. It further suggests the establishment of exchanges for resale within platforms and the pursuit of a balance of interests between copyright holders and owners through a digital resale royalty right.
In conclusion, current digital copyright transactions are solidifying into a structure of “consumption without ownership”, where users cannot exercise disposal rights despite paying a fair price. This poses a significant risk of undermining the legislative purpose of copyright law, which aims for the promotion of culture and the balance of rights. Therefore, future legislative and institutional improvements are necessary to redefine the legal nature of digital works based on “economic substance” rather than the terminology of transactions, ensuring that license agreements do not compromise the ultimate goals of copyright law.