2021 Volume 5 Issue 1 Pages 69-96
The Japanese Copyright Act provides the distribution right, the right of sale and the right of rental. They allow the right holders to control the distribution of copyrighted works. However, since it is necessary to ensure the free distribution of goods and it is sufficient if the author is guaranteed the opportunity to obtain fair compensation upon the first sale, those rights are mandated to be exhausted upon the first sale of the original work or copy of the work (first-sale doctrine, exhaustion of rights). Mainly for historical reasons, the first sale doctrine requires the transfer of tangible objects. So, it is ambiguous if the transfer of intangible contents exhausts the distribution rights. In connection with this issue, the European Court of Justice (ECJ) made two contrasting preliminary rulings (UsedSoft (C-128/11) and Tom Kabinet (C-263/18), and former cas was referred by the German Federal Court of Justice (Bundesgerichtshof). They led to an increasingly active discussion of “digitale Erschöpfung (digital exhaustion)” and the restriction of user’s rights by digital platform companies in German law. This article aims to consider the possible application of digital exhaustion in Japanese law, using comparative law with EU and German law.
