In a decision which will be of some comfort to owners of copyright in digital content, the Court of Appeal of Hamm has upheld a first instance finding that the Information Society Directive excludes exhaustion of the distribution right in relation to digital content.
The issue of exhaustion in relation to digital content / works has been a hot topic since the CJEU's ruling in July 2012 in Case C-128/11 Usedsoftv Oracle that the distribution right in Art. 4(2) of the Software Directive (2009/24/EC) may be exhausted in relation to digital files downloaded from the internet. This legitimised the onward "sale" of second-hand computer programs, provided the original purchaser makes the copy downloaded on his/her computer unusable at the time of re-sale.
The Software Directive applies solely to computer programs. Nonetheless, following the Usedsoft ruling, it has been hotly debated whether the distribution right under the Information Society Directive could also be exhausted in relation to other digital content more generally, including music, films etc.
This decision, albeit a national court decision, suggests this right would not be exhausted. The CJEU is yet to consider this specific issue, and it remains to be seen if this decision will be further appealed or if questions will ultimately be referred to the CJEU.