The principle of exhaustion, or the first sale doctrine (US), in copyright means that once a copy of a work is put on the market with the consent of the right holder he or she will not be entitled to control the further distribution of the copy. It is well settled that the exhaustion rule applies to the distribution of tangible copies (books, CDs, DVDs etc), but its application to the online context is controversial. In the UsedSoft case (case C-128/11) the Court of Justice of the European Union nevertheless applied the exhaustion rule of the Computer Software Directive to a situation where ‘used licenses’ of computer software were passed on to third parties enabling them to download the software from the right holder’s website. The article discusses the legal premises and the policy implications of the decision, contrasting it also to the ReDigi decision of the US District Court of the Southern District of New York.
This article concentrates on certain consumer protection issues in Estonian and Norwegian law in proceedings for the enforcement of security rights in residential immovable property. These issues are discussed in the context of European Union (EU) law as the recent Aziz case of the Court of Justice of the European Union (CJEU) and the new Mortgage Credit Directive (MCD) have begun to set new standards for enforcement proceedings which Member States must follow. The authors conclude that no legislative amendments are currently required in either of the two countries: the Estonian and Norwegian rules on acceleration and default interest clauses, as well as on enforcement proceedings, seem to be well in line with the requirements set by Aziz and by the MCD. Some of the national provisions allow for rather wide discretion, however, and it is possible that the future case law of the CJEU regarding the Unfair Terms Directive, the MCD and the Charter of Fundamental Rights will continue to create new standards for the effective protection of consumers in the enforcement of security rights. The current wave of developments seems to include a growing fundamental rights aspect as the individual’s right to housing is being increasingly promoted through consumer protection norms.
International contracts are often written in a standardised manner and without taking into consideration the applicable law. This may create the illusion that the contract is the only basis for the parties’ rights and obligations, especially when the contract contains an arbitration clause. Using two typical contract clauses as an illustration (force majeure clause and entire agreement clause), this article analyses the extent to which an international contract, even though it contains an arbitration clause, may be self-sufficient. The article further examines the degree to which transnational sources may provide a uniform regime, and highlights the role played by the applicable law and the various legal traditions.
This article aims to demonstrate and identify principles derived from primary legislation which govern European contract law. This demonstration is based on the consubstantial relationship, rooted in a market-oriented conception of Europe, which exists between principles set up by the European Union Treaties and those implicitly contained in secondary legislation. However, the view taken here is that not all ‘primary principles’ are shaped to integrate secondary legislation dealing with contract law. Only proportionality, effectiveness and, to some extent, non-discrimination prove appropriate in the context of contract law. The first part of the article supports the view that these principles have been used to remedy limits in European legislature competences in contract law. Part two takes the view that the principles have been used by the European Court of Justice as a tool of contractual policy making.