The secondary sale, copyright conundrum: Why we need a secondary market for digital content

This article considers the resale of digital copyright content. Other jurisdictions, including the EU and the US, have recently considered whether consumers have rights to buy and sell second-hand digital content. In Australian copyright law, there is no clear principle of first sale or exhaustion that positively permits the second-hand sale of copyright goods. In the context of physical goods, resale is generally not an infringement in Australia; but without a clear right, the resale of digital goods will be an infringement of Australian copyright law. This article considers the public policy considerations around establishing a digital secondary market. It first provides a review of recent US and EU cases that reflect upon the legality of secondary digital markets, with reference to the history and development of the first sale doctrine and the principle of exhaustion. This article then reviews the potential impact of secondary markets on consumers' access to copyright goods. It is proposed that, given the indeterminacy of economic analyses in this context, careful consideration should be given to the social and personal impacts of restrictions on alienation of digital goods, compared to their physical equivalents. It is suggested there is good reason to think enabling digital secondary markets could improve access to content and foster the innate human desire to share and gift. Finally, this article considers the potential legal framework that would support and enable digital secondary markets to exist under Australian law.