The term ‘commercially available’ originates from a pre-digital time when books and records were sold in bookshops and similar businesses and when it was not possible to purchase individual songs, articles or images over the Internet.
Thus, a work used to be considered exhausted when you could no longer buy it commercially. With today's digital options, the situation is much more difficult. Questions arise as to whether a book whose printed version is exhausted and for whom no further edition is planned can still be considered ‘commercially available’ if it can still be purchased on the author's private homepage as an e-book or be downloaded free of charge. Or what about a record that has not been available in the shops for a while but can still be found at a collector's?
The term ‘commercially available’ must now be adjusted to the digital sales forms: basically, something is also considered to be ‘commercially available’ when it can be bought over the Internet. However, this means that it is almost impossible for works to achieve the status of ‘exhausted’. Yet it is still decisive as to whether the corresponding work is in the customary marketing form
. In layman’s terms, the publishing house cannot protect the marketing of a book by also offering every individual chapter of the book as a PDF document on its homepage in addition to the printed book. This is not the case when the publishing house sells the book in both printed and e-book form. As long as the e-book is available on the Internet, it is irrelevant whether the printed version is eventually exhausted. However, if a printed book is only available in a traditional second-hand bookshop, it is no longer considered to still be commercially available. The situation may be different in the case of digital second-hand bookshops such as ZAVB
On-demand services – copying of works made contractually available online
What is the permitted scope and the remuneration (Art. 20 CopA) of legal downloads, e.g. via iTunes (Art. 19 para. 3(a) CopA)? Downloading is an act of copying that is legally bound to the counter exceptions specified in Art. 19 para. 3 CopA if it is done outside of strict private use in the personal sphere or in a private circle (Art. 19 para. 1 lit(a) CopA) but for the other private uses (educational or professional). Thus, you could potentially only be able to make incomplete copies (Art. 19 para. 3(a) CopA) and you would have to pay remuneration pursuant to Art. 20 CopA. This would lead to the questionable outcome where a user is only permitted – despite having agreed otherwise in the licence agreement with iTunes – to download this music incompletely. Furthermore, the user would have to pay iTunes directly for that download pursuant to the aforementioned licence agreement, and pay remuneration to the collecting societies for a second time as compensation pursuant to Art. 20 CopA. Thus, there is a crossover from collective exploitation due to statutory licence and individual exploitation, based on contractual licence. This must be avoided; otherwise, there will be unjustified multiple remuneration. For this reason, Art. 19 para. 3bis CopAwas introduced during the revision of the Copyright Act in 2007 to prevent double payments in particular. According to this, copies which are permitted due to legal online offers do not fall under the counter exceptions of Art. 19 para. 3 CopA, nor must remuneration be paid to the collecting societies pursuant to Art. 20 CopA.
However, legal doctrine does not agree collectively as to whether this regulation only relates to the first copy, i.e. the first download or also to every further copy; for example, the further copying of music on the computer onto an MP3 player or downloading scientific articles from an e-journal and copying them for educational purposes then falls under the obligation to pay remuneration in accordance with Art. 20 CopA (c.f. Müller/Oertli - Gasser, Urheberrechtsgesetz, 2nd edition, Art. 19 N48a; Rehbider/Viganò, Urheberrecht, 3rd edition, Art. 19 N37; Barrelet/Egloff, Urheberrecht, 3rd edition; Art. 19 N28a; Brändli Sandra, Data Mining als Forschungsmethode: Die Probleme des Grabens nach Datengold, in Mensch und Maschine - Symbiose oder Parasitismus?, 2014, p. 54 in this regard). This must be clarified by the legislator or the courts.