Digital Exhaustion: Furthering Social Justice in a Streaming-Dominated Copyright Ecosystem – Critical Remarks after the ECJ’s Tom Kabinet Judgment

Abstract

The role of copyright law in furthering social justice is blurred. On the one hand, copyright law aims to guarantee a more or less exclusive protection. On the other hand, copyright law also intends to strike a fair balance between the interests of rightholders and the society. Such balancing tools include e.g. various limitations and exceptions, the limited term of protection, procedural and fundamental rights based safeguards. Most often, these balancing tools remain “objective” in nature, and apply to all members of a given class of stakeholders. Copyright norms also further socially desirable goals, but these norms usually lack “social justice” perspectives. This paper intends to highlight the key social justice role of the first sale or exhaustion doctrine, especially in the light of the most recent case law related to the applicability of the doctrine in the digital domain.