Copyright and Property in the Digital Era : achieving Functional Equivalence between Digital Property and Physical Property

Abstract

This thesis examines the concepts of copyright law and property within a digital setting, whilst focusing on the way that technology and law have influenced both copyright law and property law. In examining the relationship between copyright and property law, this thesis focuses on the effects of Digital Rights Management (“DRM”) and End User License Agreements (“EULAs”), specifically their impact on the property rights of consumers who have purchased digital property.

Due to advances in technology, copyright holders have begun to sell copyrighted works through digital channels. The threat of digital piracy has resulted in copyright holders in adopting stringent DRM systems and EULAs in order to safeguard their works, which subsequently has resulted in consumers’ property rights being adversely affected as a result thereof.

To further complicate matters, as the doctrine of first sale only applies to a consumer who has acquired ownership of a work, copyright holders have utilised EULAs in order to bypass the application of the doctrine of first sale to transactions with consumers through digital means. Thus, this thesis examines whether it is possible to find a way where the doctrine of first sale could possibly apply to digital property, in spite of the existence of DRM and EULAs.

The aim of this thesis is to seek a solution to the problem of the imbalance that exists between physical and digital property, in other words, the achievement of parity or functional equivalence between the two types of property.