On the Application of the Principle of Exhaustion of Distribution Rights in the Network Environment: A Review of European and American Adjudication Positions and China's Approach

Chen Quanzhen

Abstract： With the rapid development of digital Internet technology， the principle of first sale of works based on the era of paper media has been difficult to respond to the development needs of the digital copyright industry. Driven by Internet technology， the expansion of the first sale principle to the regulation of the sale of copies of digital works is the way to innovate the first sale principle in the future. Under this circumstance， the two basic theories in intellectual property law： the theory of balance of interests and the theory of industrial policy， can still provide theoretical support for the expansion and application of the first sale principle. In terms of specific system design， the revision of the Copyright Law and the formulation of relevant judicial interpretations in the future should take into account the objective needs of expanding the scope of application of the first sale principle， gradually abandon the strict standard of "copy must be tangible"， and strive to coordinate distribution rights. The scope of control between the two and the right to disseminate information on the Internet， so that the first sale principle is revived in the digital Internet age.

Keywords： digital Internet; first sale principle; industrial policy; balance of interests

CLC： D 923                   DC： A         Article： 2096?9783（2022）03⁃0138⁃11

1 Statement of the Problem

With the advent of the digital age， to meet the ever-increasing social rhythm and growing social demand， more and more works are traded and disseminated on the Internet in digital form. China's digital works industry has already had a considerable scale， and the trading and use methods of digital works will gradually develop in a diversified direction1. While the development of digital technology promotes the free circulation of works， it is also accompanied by the risk of copyright infringement. However， giving excessive protection to copyright will affect the development of the digital copyright industry and the dissemination of works. China's copyright law does not clearly stipulate the principle of the first sale， let alone regulate the resale of digital works. If the online dissemination behavior of digital works is a distribution behavior， then the principle of the first sale can be applied to the network environment， and the second resale behavior of digital works is legal. If the distribution behavior only covers physical distribution， then the online dissemination of digital works does not apply to the first time. The principle of sales is that the secondary resale of digital works infringes the copyright owner's distribution rights. Accordingly， the existence of a second-hand market for digital works is also illegal. Therefore， whether the scope of application of the first sale principle should be expanded in the Internet age has become a problem that must be resolved for the survival and development of the digital second-hand market. The legality of the resale behavior of digital works not only determines the development prospects of the digital publishing industry but also relates to the public's accessibility to digital works， thus profoundly affecting the realization of public interests.

According to the current Copyright Law Article 102， paragraph 6 of the definition of distribution rights， the application of the principle of the first sale in the field of traditional entity issuance is not controversial， and judicial practice also recognizes this. However， there is a big disagreement on whether the principle of first sale can still be applied in the digital network environment. According to the literal interpretation of this article， it can be seen that it does not limit the scope of the first sale principle to "tangible copies". Can it be understood that both digital network distribution and traditional physical distribution are provided to the public by transferring the ownership of works？ A work， as long as it is provided to the public by transferring ownership， should it be regarded as a sale and thus constitute an act of distribution？ If the principle of the first sale extends to the Internet field， the expansion of the scope of application of the principle of the first sale will inevitably result in compression of information network communication rights. How should the two rights be coordinated in the specific system design， and the relationship between copyright owners and the public. How to balance the interests is a problem that needs to be resolved in the future Regulations for the Implementation of the Copyright Law and related judicial interpretations. This article first examines the judgments of European and American courts on the scope of application of the principle of the first sale， combined with the focus of disputes in the Chinese academic circle and the usual practices in judicial practice， and derives the legislative attitude that China should hold in the application of the principle of the first sale， as well as the issue rights and coordination plan between the right to spread information network.

2 Application of the Principle of First Sale in the Network Environment： Investigation and Evaluation of the Standpoint of Foreign Referees

2.1 The EU Court of Justice's Expansion Applicable Model

Regarding the legality of the resale of digital works， since the laws of various countries have not clearly stipulated this， the judgment of its legality is generally handed over to the judiciary to make a ruling based on previous precedents and the specific circumstances of the individual case. China's copyright law does not clearly stipulate the principle of the first sale， let alone regulate the resale of digital works， and there is no uniform judgment rule in practice. Instead， the EU and the US courts have expressed their positions on this issue in their respective judgments. The relevant judgments may believe that the secondary sale of digital works should not use the principle of the first sale due to infringement of the right of reproduction3; or that there is no need to distinguish between traditional tangible carriers and digital intangible carriers. Dissemination， the same applies to the first sale principle4.

In the European Union， there are a series of rules to follow in determining the legality of the resale of digital works. Article 4， paragraph 2 of the Information Society Copyright Directive clearly stipulates this： "the rights （distribution rights） specified in paragraphs 1 and 2 of this article shall not be exhausted by any act of disseminating or providing works to the public." Taking computer software as an example， the type determination of the first transaction of computer software， that is， whether it constitutes a "sale" or a "license"， will directly be the key to determining whether the subsequent resale behavior applies to the first-sale principle. If the first transaction is identified as a "sale"， the subsequent resale does not infringe copyright; if the first transaction is identified as a "license"， the subsequent resale cannot apply the principle of the first sale and constitute an infringement[1]. In the "Used Soft case"， users can download copies of computer programs on their website after signing a license contract with Oracle. The right to use involved in the license contract includes permanent storage of program copies on the server and enabling a certain number of users to access the server to download the program copies to personal workstations. Later， Used Soft launched a product called "Oracle Special Offer"， which sold redundant copies of computer programs obtained from Oracle users. Oracle therefore， filed a lawsuit with the Munich court， requesting an order for Used Soft to stop the above-mentioned actions， and the court supported its claim. Used Soft Company appealed to the Munich Superior Court， which was later rejected. The court held that the behavior of Used Soft Company violated Oracle's exclusive right of reproduction in accordance with Article 4， Paragraph 1 of the EU Computer Software Protection Directive 2009/24/EC. Subsequently， Used Soft filed a retrial request to the German Federal Supreme Court， and the German Federal Supreme Court submitted the case to the European Court of Justice for clarification. The European Court of Justice replied in July 2012， stating that Oracle put the computer program copy into circulation and signed a license contract， aiming to enable its customers to use the copy permanently after paying the price. The above two actions should be regarded as a whole constitutes the first sale， which ultimately leads to the transfer of ownership of the copy of the computer program involved， and the transfer of ownership of the copy of the computer program leads to the exhaustion of its distribution rights. Since the right holder has already obtained sufficient income when the work is first sold， and then allowed to interfere in the subsequent resale of the work to continue to obtain the income， then the right holder is over-protected， so the right holder's right of distribution should be exercised in a limited way5. According to this， all second-hand and subsequent buyers are regarded as the legal transferees of the computer program copies and can claim exhaustion of their rights. It can be seen that the European Court of Justice has expanded the application of the first sale principle from tangible copies to intangible copies， making it a reality that the first sale principle is applicable to the network environment[2].

It is worth mentioning that some scholars in the European Union put forward the "first download principle" and pointed out that this principle can not only be applied to computer software but also can be applied to other works after minor amendments6. If this principle is confirmed by the European Court of Justice， the resale of digital works will basically no longer have the possibility of infringement， which will have a significant impact on the secondary market of digital works. However， the European Court of Justice made an advance ruling on the Tom Kabinet online e-book case in December 2019. The European Court of Justice has given a clear and clear attitude on whether the first sale principle applies to the resale of e-books in the digital environment， that is， the first sale principle only applies to offline environments. The act of selling constitutes an infringement of the "right of communication to the public". The European Court of Justice believes that intangible copies of digital works are different from books with tangible carriers， and they will not be damaged with use. Therefore， second-hand copies of works are perfect substitutes for original works; in addition， there is no need to exchange these copies. Additional efforts and no additional costs are required. This parallel second-hand market is likely to cause the copyright owner's economic benefits to be greatly reduced， and this impact is likely to far exceed the second-hand market for physical works， so the resale of digital works belongs to "Communicating to the public" does not apply to the principle of the first sale7. Judging from the latest judgment of the European Court of Justice on the resale of Tom Kabinet e-books， it applies a special "computer directive" to the computer software in digital products， and believes that the resale of software can be applied to the principle of the first sale[3]. However， the resale behavior of other digital works belongs to the right category of the "right of communication to the public"， and the principle of the first sale cannot be used， that is， every resale of a digital work requires the permission of the copyright owner of the digital work and It pays remuneration to guarantee the copyright income of the copyright owner. The two diametrically opposed judgments of the European Court of Justice on the exhaustion of distribution rights indicate that with the improvement of the level of protection of intellectual property rights， the promulgation of relevant legal systems or the making of judicial judgments will be carried out according to the degree of marketization of intellectual property rights. This practice is actually the implementation and institutionalization of industrial policy. It can be said that industrial policy has played a very crucial role in the judgment of the European Court of Justice. Although this kind of adjudication thinking does not have many references for China's judicial practice， the copyright legal system with obvious policy tool attributes should pay attention to absorbing the judging thinking of the European Court of Justice. The Copyright Law should be carried out based on fully considering the balance of interests and industrial policies.

2.2 The Limited Application Model of U.S. Courts

Compared with the vacillating attitude of the European Court of Justice， the United States in recent years， both in industry and in academia， has called for the first sale principle to be applied to the online environment. In order to control the dissemination of works in the Internet environment， most US courts choose to regulate by the right of reproduction. As early as 2005 in the BMG Music Company v. Gonzalez case8， the defendant downloaded music works on the Internet without permission. The U.S. Court of Appeals did not extend the principle of the first sale to the Internet environment but found that the act violated the author's right of reproduction. In the 2013 U.S. Capitol Records v. Redicky Company case9， the court continued to clarify this position. Radickey provides users with a trading platform for the resale of digital music files， and permanently deletes the digital music files in the storage device of the transferor through the "upload + delete" technology. The plaintiff， the U.S. Capitol Records Company， believed that the actions of the defendant Redicky Company violated its distribution rights. The defendant argued that the distribution rights were exhausted. The U.S. District Court held that between the seller uploading the copy of the digital work to the defendant's server， and the buyer downloading the copy of the digital work from the defendant's server to the personal storage device， these two acts actually created a new copy， while the original file still exists on the seller's storage device. These two actions actually produced a new copy， while the original file still exists in the seller's storage device. Therefore， the act of reselling digital works infringed the plaintiff's right of reproduction， and the principle of the first sale cannot be applied to the network environment.

In the American academic circles， whether the principle of the first sale can be applied to the network environment has been controversial. Some scholars believe that the law does not make a clear distinction between issuance behavior and network communication behavior， and network communication should be classified as network distribution， and the right of distribution shall be adjusted. Some scholars have also proposed the use of "forwarding and deleting" as a support for the legality of digital works resale to ensure the uniqueness of the works. They believe that if the distribution rights cannot be exhausted in the network environment， the public's access to digital works will be reduced. Sex， and ultimately harm the public interest. Scholars who hold the opposite view believe that the identification of "repost and delete" is very difficult， and the lack of necessary supervision means cannot guarantee the uniqueness of the work[4]. It is worth mentioning that the secondary sale of digital works will inevitably copy the work. The inseparability between the distribution of digital works and the copying behavior means that the application of the principle of the first sale of digital works will infringe the copyright of the copyright owner. This is also the United States， which cannot be tolerated by the Copyright Law.

2.3 China's Theoretical and Practical Stance on the Principle of the First Sale of Digital Works

It can be said that the EU and the United States have reached a consensus on the principle of the first sale of digital works， but the current judicial practice and theoretical circles in my country have not reached a consensus on this issue. Most Chinese scholars believe that in the network environment， the principle of the first sale lacks an applicable basis， and they oppose the application of the principle of the first sale to the field of digital network communication of works. For example， some commentators believe that the digital network is an information transmission system， and information transmission is completely based on copying. This transmission process includes both traditional distribution and copying. The concept of distribution rights in the Copyright Law can hardly cover information and network transmission[5]. Professor Wang Qian believes that the value of the first sale principle is to clarify the boundary between "distribution rights" and "ownership". Of course， the foundation of existence is lost[6]. The above point of view is also reflected in China's judicial practice. The court held that the basis of "distribution right once exhausted" is the inseparability of the work and its tangible carrier in the pre-Internet era， that is， the distribution right is aimed at the work or copy of the tangible carrier. The dissemination of works through the information network does not constitute an act of issuance， but network data carriers that meet certain conditions can use this rule by comparison： such as buying out the works database10. There are also many critics who hold the opposite view. They believe that the reason for not recognizing that the principle of the first sale applies to the online environment is because many people confuse the behavior of online communication and online distribution and upload digital works to the open network for unspecified public viewing. It is an act of dissemination; however， if the licensee obtains the ownership of the digital work by paying the consideration， and then transfers the copy of the digital work to the public， it will be included in the scope of distribution[7]. Some scholars further pointed out that the provision of digital works to the public by means of Internet communication is "providing the public with the original or copy of the work"， which is in line with the first essentials of the issuance behavior; free browsing and downloading of digital works by the public online can be regarded as separately "gifts" and "sales" are in line with the second essentials of issuance. Therefore， the act of dissemination of digital works on the Internet should be attributed to the act of issuance[8]. Based on the consideration of industrial development， some commentators believe that limiting the adjustment scope of distribution rights to the field of physical issuance is not only detrimental to the development of digital network platforms but also easily leads to conflicts of interest between the physical issuer and the digital network platform[9]. It is true that in practice， many digital products such as computer software are usually not sold but traded in a licensed way so the "issuance" of a large number of computer software is considered a licensing act， which excludes the first time. The scope of application of the sales principle.

From the perspective of the dissemination process of a work， the resale of a digital work is the copying of the original work and the transfer of the copy after copying， including two processes of copying and dissemination; while the resale of a traditional work is a tangible copy of the directly transferred work. This does not infringe the right of reproduction of the right holder， which is another major difference between the two. Since the carrier of digital works is intangible， the resale or network communication of digital works is generally regarded as the same kind of behavior. The different judgments of the case and the disagreement on the exhaustion of digital network distribution rights in the field of Chinese Copyright Law are related to this. By comparing the judgments of the European Court of Justice and the Chinese courts， it can be seen that although both hold the position that "distribution rights are not exhausted in the digital network environment"， their judgments are based on very different judgments. The former's judgments pay more attention to the interests of copyright owners. At the same time， industrial policy considerations are mixed in the judicial reasoning， and the latter applies the law strictly in accordance with the definition of distribution rights in the Copyright Law， and there are almost no interest balance or industrial policy considerations. In this regard， this article believes that the application of distribution rights clauses in judicial practice should not be too conservative， and should be expanded as much as possible to enhance the adaptability of distribution rights clauses in the information network era. In fact， the digital work trading platform places the copyright owner's work on the network platform for users to download for a fee， and the user pays the price to download the digital work on the network platform to a personal storage device， and the work transaction ends. In addition to making transactions more convenient and eliminating the need for printing， distribution， and transportation， there is no essential difference from the physical distribution of works. After downloading a digital work， network users can not only freely use the copy of the digital work but also freely dispose of the copy of the digital work because of the ownership. According to the definition of distribution rights， "to provide the original or copy of the work to the public by way of sale or gift"， if one day users no longer need the digital work， it can be placed in the second-hand market for secondary sales without infringing copyright people's distribution rights.

It can be concluded from the different viewpoints of the academic circles that whether the first sale principle is extended to the digital network environment is quite different. On the surface， it is caused by different interpretations of relevant legal rules， but it is the result of the game of interests between different industrial groups. Therefore， it is necessary to theoretically justify the application of the principle of the first sale in the digital environment， and this theoretical justification should be carried out based on based on fully assessing the interests of relevant subjects and the development trend of the copyright industry.

3 The Theoretical Justification of the Application of the Principle of the First Sale to Digital Works

3.1 Industrial Policy Theory

Industrial policy is an important support of the Keynesian theory， and domestic scholars have not yet reached a consensus on its connotation. From a macro perspective， industrial policy refers to the policies or laws formulated and implemented by a country that represents the public interest to achieve economic goals such as industrial development， wealth growth， and public welfare. Encouragement and guidance， as well as interpretations and judgments made by judicial organs on economic activities[10]. From the perspective of industrial policy， copyright and even the entire intellectual property system are the means by which the country encourages technological innovation and promotes economic and social development. The main goal is to realize national industrial interests and social public interests， secondly， to protect the personal interests of rights holders. That is to say， although the right holder is given a strong monopoly position， it is more embodied in the sense of tools. The purpose is to encourage technological innovation and achieve economic and social effects[11]. As far as the copyright of digital works is concerned， relevant industrial policies protect their monopoly interests by granting copyrights to authors. On the one hand， encouraging capital investment and technological innovation， and realizing the long-term development of the copyright industry， thereby promoting the growth of the national economy and social welfare. On the other hand， copyright is essentially a monopoly right， which may damage the public's accessibility to literary and artistic works. The theory of industrial policy is based on the overall interests of society， not simply protecting the monopoly interests of copyright owners， but more importantly， promoting the progress of the national copyright industry and economic development.

Applying the principle of the first sale to the network environment is conducive to handling market relations in the copyright industry. Intellectual Property Law endows the fruits of intellectual labor with property rights to achieve the optimal distribution of wealth. This is because the distribution of wealth is determined by the ability of people to plunder， the ability to prevent plunder， and various accidental factors. Under the property rights mechanism， the state can redistribute wealth[12]. As a remedy， the intellectual property system is impossible to replace and control the market， but when the market fails， the intellectual property system can alleviate the uneven distribution of wealth caused by this. The intellectual property system can give full play to the effect of its incentive mechanism， encourage market innovation， promote industrial development， and form a benign interaction mechanism with industrial operations， instead of relying on the privileges granted by the law to combat the emergence of new things， and ultimately leading to market inertia and curbing the development of new trading models. Taking the Napster case in the United States as an example， there are two main fates of digital work suppliers： one is that judicial practice rejects Napster， a new digital work-sharing platform， and believes that it is illegal; the other is after Napster. Some legally-operated record companies have appeared， offering limited products on a paid basis， and eventually terminated their operations due to lack of content[13]. From this point of view， the problem that needs to be resolved is not simply the application of existing laws， but the lack of a regulated method in the immature business model of new transaction methods that accompany the emergence of the Internet. However， it is impractical to forcefully seek a solution in traditional regulatory methods. The prevalence of illegal transmission in the network environment is largely due to the lack of a legal market. Existing regulations alone cannot solve the problem. Internet technology has broken the order of traditional works trading， and new online trading rules have not been established in time. If a "one size fits all" treatment is simply made based on the existing system， it will be in the name of intellectual property protection， and by eliminating competition in the digital market， it will hold back the traditional copyright industry and hinder the development of new technologies and the expansion of the copyright industry. The creation of the principle of the first sale in the network environment is not to abandon legal regulations or abandon the intellectual property system， but to achieve a balance of interests between systems， rights holders， and the public interest， and to achieve the prosperity and development of the second-hand market for digital works. And then realize the continuous innovation of the copyright industry， without the threat of the old industry[14].

3.2 Theory of Balance of Interests

One of the basic functions of the Copyright Law is to resolve the contradiction between the copyright owner's exclusive rights and the popularization of intellectual creation achievements， that is， to coordinate or alleviate the conflict between the copyright owner's monopoly right to intellectual achievements and the public's right to obtain intellectual creation achievements[15]. From this perspective， copyright legislation does not give copyright owners full control， but imposes a series of rights restrictions on the exclusive rights they enjoy， so that they can only conditionally restrict the intellectual achievements of creation.

An eternal proposition in the legal regulation of Internet copyright is how to seek a rational balance between the interests of copyright owners and the interests of the public. The traditional Chinese social concept is different from the western philosophical concept based on individual interests. It emphasizes the collectivism of "home， country， and the world" so that the modern legal system still runs through the idea of the supremacy of public interest. In the Internet publishing industry chain， the term "user" or "reader" implies that netizens are an important link in the Internet publishing industry chain. Behind it are real individuals， representing the interests of consumers， and consumers' rights have evolved into special rights based on the protection of the rights and interests of the weak. The particularity of this right is reflected in the non-equivalence characteristics of rights and obligations[16]. In contemporary society， everyone has become a consumer due to the existence of the market economy. Although consumer rights and interests seem to be a personal interests on the surface， since consumers represent an unspecified majority， their rights and interests are universal in social and economic terms. Sex， which can represent the public interest. In modern society， any member of society is or maybe a network user， and the size of the network user group is large enough to constitute the public. Chinese court judgments also have precedents that the interests of network users are regarded as public interests. Therefore， the interests of network users have a more solid foundation of social concepts and a higher level of value. In fact， the emergence of the first sale principle is the result of a compromise made by the copyright owner based on the public interest of the society. As far as the issuance of traditional works is concerned， after the copyright owner sells the work for the first time， the income based on the royalty and certain sales of the work can not only recover the creation cost， but also obtain additional economic benefits， so there is no need to control the work anymore. Secondary sales continue to obtain high profits， and the behavior violates the legislative purpose of the Copyright Law. However， this situation has changed in the era of the digital Internet. The quality of the creation of digital works is no different from that of traditional physical works， but the intellectual labor paid by the author or copyright owner in the creation process is no less than that of the author in the traditional publishing form. Resulting in a great uneven distribution of benefits. Copyright owners always hope to increase their economic benefits and maximize the value of their creative intellectual achievements. However， at present， the copyright owner of the digital publishing industry is unclear， the distribution of benefits is unbalanced， and there is a huge difference between the copyright owner's digital publishing revenue and the physical publishing revenue， may cause a heavy blow to the digital publishing industry. At this time， the benefits balance mechanism of the copyright law will fulfill its original function， that is， to satisfy the individual's best interests， and at the same time require a balance between public welfare and private interests[17]. Law， as a check and balance device to adjust social relations and balance the interests of different social subjects， not only pays attention to the interests of a certain person or a certain social group in social life but pays more attention to the reconciliation of the overall interests of society. The system goal of the Copyright Law is to encourage copyright owners to continue to make intellectual creations on the one hand， and on the other hand to promote the dissemination of intellectual achievements.

The balance point of the exhaustion of distribution rights in the network environment is to control the paid download behavior of works with distribution rights. The distribution right originally controlled the physical distribution behavior. After the emergence of digital works， it controls the distribution of digital networks， but it still leaves room for the information network dissemination right， so that the copyright owner can obtain economic benefits by controlling the paid download behavior of the work， or through information. The right of network communication controls the interactive communication behavior of digital works to obtain economic benefits. As far as the network communication of digital works is concerned， since there is no loss in the resale process of digital works， there is no difference in quality between the resale digital works and the original works. This may cause copyright owners to worry that the licensee pays a lower price. The second sale of digital works at prices creates unfavorable competition for the works sold for the first time by the copyright owner， thus losing market share. However， from the perspective of the market operation mechanism， on the one hand， since the licensee can still sell the digital work for the second time after paying the consideration， the cost of the first purchase can be partially compensated. Therefore， the existence of the second-hand market will affect the licensee to a certain extent. Buying a work at a high price for the first time has an incentive effect; on the other hand， considering that the work will be resold for the second time by the licensee after the first sale， the copyright owner can also use the resale price in the second-hand market as a reference to increase the number appropriately. The price of the first sale of the work forms a healthy competition with the second-hand market[18]. Some commentators pointed out that the use of the first sale principle in the digital environment is conducive to the free circulation of digital works[19]， but free circulation is not the public interest that the Copyright Law wants to protect， or the first sale principle in the Copyright Law is to ensure the free circulation of crops. rather than the free circulation of works， because copyright law has always tried to prevent the free circulation of works， thereby protecting the exclusive rights of the copyright owner[20].

If the theory of industrial policy and the theory of balance of interests can provide theoretical justification for the application of the principle of the first sale to the internet environment， then how to coordinate the objective conflict between the right of distribution and the right of information network communication will become the future. Issues that must be considered in the Regulations for the Implementation of the Copyright Law and related judicial interpretations.

4 The Division of the Distribution Right and the Control Scope of the Information Network Dissemination Right

Whether a copyright owner's distribution rights should be exhausted in the network environment not only involves the balance between it and the public interest in terms of value justification， but also the choice of legislation and technology is related to the rise and fall of the secondary market for digital works， which in turn affects the digital publishing industry long term development.

4.1 Expansion of the Control Scope of Distribution Rights under the Behaviorist Legislative Model

The continuous development of Internet technology has profoundly reshaped intellectual property rights， especially the copyright system. New methods of dissemination continue to emerge， and the scope of copyright property control continues to expand and overlap and overlap. The chaos in the regulation of rights appears to be caused by science and technology on the surface， but in essence， it is the advancement of science and technology that has given birth to the new use of works[21]. Technocratic legislators believe that the new use of works， such as network transmission of digital works， cannot be controlled by the original distribution rights， but a new copyright system needs to be created. If a kind of copyright property rights is created for the new behavior alone， it will not only increase the legislative cost but also is not conducive to the logicalization of the copyright property rights system. Both the online distribution and physical distribution of digital works provide the carrier of the work to the public so that the public can appreciate the work at a time or place selected by individuals. There is no essential difference in the distribution methods and effects of the two. The issuance behavior serves as a criterion for judging the selection system.

In copyright and even the entire intellectual property system， technology is at the core， directly giving birth to the intellectual property system， and the principle of technological neutrality has been implemented throughout. But if the same behavior produces the same result， it cannot be treated differently because of technical differences[22]. The history of the development of science and technology has shown that technological changes are endless. If the control of a certain right over a certain behavior is limited to a specific communication technology， then the setting of the right will inevitably be exhausted due to the profound changes in science and technology. China's unique information network dissemination right system， whose function is to regulate the network dissemination of works. However， with the deep integration of the broadcasting network， telecommunications network， and the Internet， the scope of regulation of information network communication rights has shown a passive expansion trend， but the function of the rights is still very single， which can only control interactive communication behaviors， and is compatible with other copyrighted property rights such as broadcasting. The regulatory scope of rights and issuance rights overlapped11， only the changes in the dissemination carrier of works brought about by the progress of the triple play technology， it is concluded that the use of information network dissemination rights to control the downloading and resale behavior of digital works will undoubtedly lead the copyright legislation to a technicalist legislative model. In the future， with the continuous advancement of technology， the dissemination and utilization of works will become more abundant， and the scope of control of various sub-rights of copyright will still overlap. If copyright legislation can abandon technicalism and use works as a criterion， it is possible to avoid overlapping of rights[23]. There is no difference between the physical distribution of digital works and online distribution in terms of distribution effects. The scope of distribution rights should be expanded to the digital network space， and the downloading and transfer of digital works should continue to be controlled. To reduce the regulatory scope of information network communication rights， the information network communication rights should be amended through the refinement of adjudication rules， the technical term "network" should be eliminated， and the "information communication rights" should be used to control the public's appreciation of works at a time and place selected by individuals.

4.2 Re-division of the Scope of Regulation of the Right of Distribution and the Right of Information Network Dissemination

The expansion and application of the first sale principle will result in the compression of the regulatory scope of the information network dissemination right. To a certain extent， it can be regarded as a re-adjustment of the regulatory scope of the right caused by technological progress. Under the urging of communication technology， the behavior of downloading or reselling digital works was originally adjusted by the right of information network communication but is now adjusted by the right of distribution， and the right of information network communication is revised to "information communication right" to control interactive network communication behavior.

According to the provisions of the Copyright Law and the Implementation Regulations of the Copyright Law， the right of information network dissemination is nothing more than adjusting the following two behaviors： one is the behavior of the public downloading digital works on the Internet， and the other is the time and place selected by the public. Appreciate the behavior of works in cyberspace. Since the public has already obtained the ownership of the work carrier， similar to physical distribution， it should be regulated by the distribution right; the latter belongs to the online browsing of the work， where the public can enjoy the work freely and repeatedly， and the information network dissemination right can still control this behavior. In this regard， the vast majority of commentators define the right of information network dissemination as "providing works by wired or wireless means for the public to browse online， or providing works to the public by other means of the right to access works at time and place"[24]， continue to play the role of the right of information network communication to regulate interactive network communication， in order to achieve the minimum standard goal. However， this kind of thesis ignores the convergence of communication methods in the context of triple play and the confusion of communication behaviors. Information network communication rights can no longer control non-interactive Internet live broadcasts and cable live broadcasts， and the scope of regulation of information network communication rights has gradually appeared in a vacuum12. It is urgent to refine the rules of referees to amend the "right of information network dissemination" to "the right of information dissemination"， which is defined as all network dissemination behaviors including interactive network dissemination. Incorporate the "information dissemination right" into the regulatory scope to fill the vacuum in the regulatory scope of the information network dissemination right， and to avoid the cross-mixing of the control scope of the information network dissemination right with other copyright property rights. Accordingly， with regard to the provisions of Article 10 of the Copyright Law on the right of information dissemination on the Internet， it is advisable to use the unification of the adjudication rules in the future to dilute the term "network" that represents technical characteristics and amend it as "the right of information dissemination". The right to disseminate his work to the public by wired or wireless means， including disseminating his work to the public so that it can be obtained at a time and place selected by the individual.

Regarding the terms of distribution rights in Article 10 of the Copyright Law， future judicial interpretations should provide an expanded interpretation： distribution rights， that is， to provide to the public by gifting， selling， or providing digital works for download or other transfers of the work carrier. The right to the original or copy of the work. Firstly， in addition to gifts and sales， the digital distribution form of "providing digital works for public download" is intended to expand the scope of application of the principle of the first sale to the digital network space， and digital works that were originally adjusted by the right of information network dissemination The download behavior is adjusted by the principle of the first sale. The reason is that as long as an act can enable the public to obtain the carrier of the work and be able to appreciate the work anytime and anywhere， it should be classified as an act of distribution， and the principle of the first sale shall be applied; secondly， "other methods of transferring the carrier of the work" should be added to make the terms of distribution rights more ambitious， be inclusive， open， and forward-looking. Because with the development of technology， the carrier of the work may appear in other forms， and the use of work or distribution channels may continue to expand. If the new technology is accompanied by only the change in the use of the work， it will not make the results of the use substantive. Impact， then the use of the work should still be adjusted by the original right， that is， the right of distribution.

5 Prospect

At present， domestic theoretical circles and practical circles have different views on whether the first sale principle can be extended to the Internet environment. The courts of the United States and the European Union have even made diametrically opposite judgments on similar disputes in the digital environment. In theory， there is no obstacle to the extension of the first sale principle to the Internet environment advocated by this paper， and the theory of industrial policy and the theory of balance of interests in intellectual property law can be used as its theoretical support. However， the expansion of the scope of control of one right will inevitably lead to the restriction of the scope of application of another right. Therefore， in terms of specific system design， it may not be appropriate for the legislature to directly revise the distribution right clause of the Copyright Law. A more appropriate measure is to take a gradual approach in judicial practice， attention should be paid to the demarcation of the scope of control of the two rights， and the standard of "tangible copy" should be diluted to form adjudication rules for similar cases， and then incorporate them into copyright legislation. In this way， the principle of first sale can be revived in the future and continue to promote the prosperity of the second-hand market of digital works in China.

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論网络环境中首次销售原则的适用：欧美裁判立场考察与中国镜鉴

陈全真

（南京大学 法学院，南京 210093）

摘    要：随着数字互联网技术的迅速发展，基于纸媒体时代的作品首次销售原则已难以回应数字版权产业的发展需求。在互联网技术的驱动下，将首次销售原则扩张适用于规制数字作品复制件销售行为，才是首次销售原则未来的革新之路。在这种情况下，知识产权法中的两大基础性理论——利益平衡论与产业政策论依然可以为首次销售原则的扩张适用提供理论支撑。在具体的制度设计上，未来《著作权法》修订及相关司法解释的制定应考虑到首次销售原则适用范围扩大的客观需求，逐渐摒弃"复制件必须有形"的严苛标准，致力于协调发行权与信息网络传播权两者之间的控制范围，从而使首次销售原则在数字互联网时代重新焕发生机。

关键词：数字互联网;首次销售原则;产业政策;利益平衡