Business Law

Is there a second hand market for digital content in Australia?

Published in: September 2017

As music, books, and movies increasingly take digital form, one of the things lost is a second hand market for selling such content. Second-hand markets have long been a feature of consumer culture and the digital age has thrown numerous challenges and the question is, Australia ready? Does a secondary market for digital content exist? It’s a subject area that is worth looking at and which this piece will explore.

The Australian position

Section 31 of the Copyright Act 1968 (Cth) (the Act) outlines the exclusive rights available to Australian copyright holders. However, there is no general right available to control distribution of material that has a copyright. Additionally, there is also no express provision allowing for the exhaustion of the right upon first sale. For copyright holders in Australia, distribution is prevented by relying on the exclusive rights to reproduce, publish, copy, broadcast, or communicate to the public in electronic form, as outlined in s 31 of the Act. Therefore, any use of a copyright work that is unauthorised or unlicensed can be seen as infringement of copyright according to ss 29 and 31 of the Act.

Does a secondary digital market exist in Australia?

Broadly speaking, any reproduction, publication and communication rights may be infringed upon if the reproduction of a copyright work is unauthorised, and if the reproduction is supplied to secondary public marketplace, as outlined in ss 31 and 38 of the Act. The general position in Australia when looking at the transfer, sale or sharing of digital content may attract copyright infringement if the action involves any reproduction of the relevant material.

In Australia pursuant to any law, the online transfer, sale, or sharing of digital content may attract copyright infringement if the action involves reproduction of the relevant material. On the flipside, the publication right grants the copyright holder the ability to publish or authorise another party to supply reproductions of the relevant work to the public. However, this is only related to first publication of the material. 

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