Примери за използване на Exhaustion rule на Английски и техните преводи на Български
{-}
-
Colloquial
-
Official
-
Medicine
-
Ecclesiastic
-
Ecclesiastic
-
Computer
Such a situation would lead to a monopoly on distribution which the exhaustion rule is specifically intended to prevent.
The opposite result would have encouraged rightholders to distribute their computer programs in an intangible form in order to escape the exhaustion rule.
I do not consider that, as the legislation currently stands, the exhaustion rule, which is inherently linked to the right of distribution, can be extended to the right of reproduction.
The French Government and Ireland further submit that a person who has not acquired a licence from the rightholder andis not therefore the lawful acquirer of the program cannot rely on the exhaustion rule.
(42) Thus, for example,by the standard of the wording of that recital, the exhaustion rule should not apply to an online purchase of a CD‑ROM in which the copy of the computer program is incorporated.
Where the original copy is not incorporated in a material medium, it is appropriate to apply the solution adopted by theCourt in the judgment in UsedSoft(27) in order to preserve the effectiveness of the exhaustion rule.
As Microsoft points out,the use of the term‘that copy' precludes reliance on the exhaustion rule for any copy other than the original copy sold by the rightholder or with his consent.
In my view, it is clear that, under Directive 2009/24, the distinction between sale andrental is the‘summa divisio' on which both the application or otherwise of the exhaustion rule(30) and the scope of that rule depend.
With more specific regard to computer programs, the exhaustion rule is laid down in Article 4 of Directive 2009/24, which repeats the wording of Article 4 of Directive 91/250 but splits that article into two separate paragraphs.
To hold that the posting on one website of a work previously communicated on another website with the consent of the copyright holder does not constitute making available to a new public would amount to applying an exhaustion rule to the right of communication.
It points out that the exhaustion rule, which has developed within the context of the free movement of goods, does not have the effect of exhausting the right of a patent holder to distribute consignments other than those which were marketed with his consent.
Moreover, although the right of distribution is broadly defined, only one form of distribution, sale,triggers the exhaustion rule, whereas, once that rule has been brought into play, its effects extend to any form of distribution, with the exception of rental.
Under the exhaustion rule, the intellectual property rightholder who has put goods into circulation in the territory of a Member State loses the right to rely on his monopoly on exploitation in order to oppose their importation into another Member State.
UsedSoft adds that that interpretation, based on the wording of Article 4(2) of Directive 2009/24,is supported by the objective of the exhaustion rule, which is to strike a balance between the economic interest of the author in exploiting his work and the interest of the free movement of goods and services.
The question whether the exhaustion rule, as worded in Article 4(2) of Directive 2009/24, is capable of encompassing the marketing of‘used' computer software downloaded from the internet has prompted considerable controversy in the Member States, especially in Germany,(23) which controversy is mirrored in the debate taking place in the United States with respect to the application of the‘first sale doctrine' in the digital environment.
By its first and third questions, the referring court asks the Court, in essence, whether, as a‘lawful acquirer' within the meaning of Article 5(1) of Directive 2009/24,the acquirer of the user licence may rely on the exhaustion rule laid down in Article 4(2) of that directive in order to make a new copy of the computer program if the first acquirer has erased his copy or no longer uses it.
Thirdly, an interpretation of Article 4(2)of Directive 2009/24 to the effect that the exhaustion rule does not apply to internet downloads, when that form of marketing is used extensively to distribute computer programs, would have the effect of limiting the scope of that rule very significantly and, at the same time, of restricting freedom of movement.
Contrary to what was argued by the defendants,the Latvian Government and the Commission, the exhaustion rule cannot apply to the resale, without the rightholder's consent, of other media incorporating the computer program(non-original tangible copies), even in the event of deterioration of the original medium.
While it appears to draw a distinction between the sale of goods, to which the exhaustion rule would apply, and the provision of services, to which that rule would be inapplicable, the fact remains that online services, as defined by EU law, include the sale of goods online.
Moreover, and in order to preserve the effectiveness of the exhaustion rule, the Court held that, notwithstanding the rightholder's exclusive right of reproduction, the second acquirer of an intangible copy of that kind has the right to make a copy of it on his computer in order to use the program in accordance with its intended purpose, pursuant to Article 5(1) of Directive 91/250.
An excessively restrictive interpretation of that term would undermine the effectiveness of that provision by divesting the exhaustion rule of all scope, since the marketing of computer software most commonly takes the form of user licences and suppliers would only need to call the agreement a‘licence' rather than a‘sale' in order to be able to circumvent that rule. .
The Court has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically;
The Court has recognised that the rule of exhaustion of domestic remedies is neither absolute nor capable of being applied automatically;
Nor can those reproductions be considered to be covered by the rule of the exhaustion of the right of distribution.
Such trading is legal under the rule of regional exhaustion of the trademark owner's right applied in the EU and EEA.
As a rule, they lead to exhaustion of the body and even to anorexia.
In the more‘traditional' context of original tangible copies sold with the rightholder's consent,there is no particular risk to the effectiveness of the rule of exhaustion of the right of distribution.
In the second place,the strict approach seems to be consistent with the overall conception of the rule of exhaustion of the right of distribution as provided for by EU copyright law, as Microsoft has argued.
The latter was opposed to that resale practice, arguing in particular that the rule of the exhaustion of the right of distribution did not apply to intangible copies of that kind.
The effect of this rule is the restriction of the exhaustion of the rights conferred by a trademark only to the cases in which the goods are put on the EU/EEA market, thus enabling the proprietor to exercise control on the initial placement of goods with his trademark on the EU/EEA market.