The paper is based on the author’s keynote power-point presentation made in September 2013 at the ALAI Congress held in Cartagena, Colombia. First, it reviews the international norms that are relevant from the viewpoint of exhaustion of rights. Then, it discusses how the Kirstaeng decision of the U.S. Supreme Court – partly, but not consistently, based on its earlier Quality King decision – got in conflict with the Copyright Act and government policy of the U.S., and what kinds of legal-political consequences it may have. After this, the paper analyzes the reasons for which the preliminary ruling of the Court of Justice of the European Union (CJEU) in the UsedSoft case consisted in no less than de facto modification of the acquis communautaire (to which the Court’s competence does extend). The CJEU introduced “online exhaustion” of the right of distribution (but also of the right of reproduction) which is not allowed under the WIPO Copyright Treaty, the Information Society Directive – and equally not allowed under the Computer Programs Directive (into which the CJEU tried to include lex specialis elements that, in reality, are not part thereof in order to support the legal construction on which its ruling was based). Finally, the paper presents the key aspects of the ReDigi order adopted by the District Court of the Southern District of New York which rightly found that there is no such thing as “digital exhaustion.” The paper is closed by considerations on the possible role of the three-step test with respect to exhaustion as limitation of rights.

The Hungarian Copyright Association has responded in detail to all the 80 questions of the consultation document. The response to the last - 80th - question may also be used as a brief summary of the responses: "There is a fundamentally important matter. The system of adequate protection and enforcement of copyright has been eroded recently as a result of successful lobbying of certain special interests groups (ever more powerful IT industries, online intermediaries, entertainment equipment and material manufactures, etc.) and by neo-anarchist movements supported and aggressively promoted by them. There is a need for a serious reconsideration of the EU’s copyright policy in close connection with its cultural policy, with the objective of re-establishing an appropriate balance of interests seriously disrupted to the detriment of creators and producers of cultural goods and services. This Questionnaire seems to be better balanced than certain previous documents issued by the Commission but it still reflects a trend to prefer considerations trying to justify the weakening of copyright protection. We believe that this approach should be changed; this is not only a cultural interest of the EU, but also its weighty economic and social interest."

Although there were some suggestions to include a general exception for user-generated content (UGC) in Hong Kong's Copyright (Amendment) Bill 2014, this idea has been rejected. The Bill only contains new provisions on exceptions where it is truly needed for the freedom of expression of UGC creators; for parodies and quotations. This short article presents seven reasons for which the drafters have chosen that right solution that may guarantee harmony with the relavant international norms.

[This is a slightly corrected version of the article originally uploaded on 2014-05-05 without any real substantial change. Thus, the summary description below has not been modified either.] It is a widespread opinion that the CJEU’s Svensson judgment „has saved the Internet” (because it has maintained the possibility of using hyperlinks). The judgment might also offer chances for rightholders to exploit their works and objects of related rights in the online environment, since it has clarified that the use of “clickable links” qualifies as an act of making available to the public. Unfortunately, those chances are limited because the fundamental problem of the CJEU’s “established case law” on the right of communication to the public and the right of making available to the public – namely, that it is based on the „new public” and „specific technical means” theories – has not been eliminated. The “new public” theory – as outlined in the Court’s SGAE ruling – is in conflict with the international treaties and the EU directives. The theory was adopted because the CJEU – recognizing WIPO publications as a reliable source to clarify the concept of communication to the public – relied exclusively on an old 1978 WIPO Guide to the Berne Convention (and misinterpreted it) rather than (i) on the text of the relevant norms and of their “preparatory work”; (ii) on the thorough analysis made in authoritative copyright treatises; (iii) on the interpretation adopted by a series of competent WIPO committees of governmental experts; and (iv) on the new 2003 WIPO Guide reflecting that interpretation (refuting the “new public” theory). In the TVCatchup judgment, the Court tried to correct the “new public” theory by introducing the “specific technical means” theory (according to which the right of communication to the public applies where there is no new public but the communication is made by such new – different – means); but this theory is not in accordance with the international and EU norms either. In the Del Corso ruling, the CJEU got into an even more obvious conflict with these norms by subjecting the application of the right of communication to the public to the criterion of profit-making purposes. In Svensson, the Court made a further correction in the combined “new public” and “specific technical means” theories by ruling that the right of making available to the public through hyperlinks (clickable links) apply also where rightsholders restrict access and the restriction is circumvented. The chances of rightholders to use licensing methods facilitating due exploitation of their works and objects of related rights depend on how broadly the concepts of “restriction” and “circumvention” are interpreted. However, the criterion of “restriction of access” may also be regarded as a sort of formality to be fulfilled for obtaining protection of the right of making available. It would be desirable to establish an adequate balance by saving both the Internet and copyright on bases other than the legally defective concepts of “new public”, “specific technical means” and “restriction of access”. Alternatives might be the introduction of a new exception or limitation or the application of a duly developed and finely tuned implied licensing doctrine. Since the adoption of the “new public” theory was due to the fact that the CJEU had not been appropriately informed on the truly decisive sources of interpretation of the concepts and rights of communication to the public and making available the public, the chain of controversial judgments on these concepts and rights is a further proof that the preliminary ruling system requires revision and correction.

The paper reviews the various questions concerning the concept and right of communication to the public in the request for preliminary ruling in the GEMA v. REHA Training case stressing it offers a good opportunity for a review and consolidation of the case law of the CJEU on the right of communication to the public. As regards the „new public” criterion introduced by the CJEU as a condition of applicability of the right of communication to the public, the paper describes and discusses how the Court based this theory exclusively some comments in a nearly 40-year-old Guide of WIPO of a general introductory nature by considering it as a reliable source, when even that publication written in an “easy style” did not suggest the applicability of such a criterion and when the truly reliable sources – the text and „preparatory work” of the Berne Convention as duly interpreted, the resolutions and decisions of the competent WIPO bodies, the authoritative treatises on the Convention, as well as a new WIPO Guide – all make it clear that the application of such a criterion would be in conflict with the Convention. It is pointed out that the adoption of the erroneous “new public” theory took place because the parties and other participants in the cases concerned had not identified those decisive sources and, thus, the Court was not duly informed. The paper also discusses the reasons for which the criteria applied by the Court in the SCF v. Del Corso case (to which the request for preliminary ruling in the REHA Training case refers) concerning the profit-making nature of the acts of communication and the active attitude of the members of the public as conditions of the application of the right of communication to the public are not in accordance with the Berne Convention and the EU Directives either. The paper suggests that the non-application of the right of communication to the public in the SCF v. Del Corso case might only be in accordance with the treaties and the acquis if it were regarded as to be based on the de minimis principle by having taken into account the various specific aspects of the case, not as definitional criteria of the concept of communication to the public but only as justifying in the given concrete situation, when considered together in a cumulative manner, an exception to the application of the right of communication to the public. It is added that, in the REHA Training case, the same specific aspects justifying such a de minimis exception are not present.