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Balancing Copyright Law in the Digital Age

“…121 At the same time, their judicial disapplication can hardly be reconciled with those of CJEU's precedents that assume that the fair balance between copyright and fundamental rights has been realized by the broad and flexible catalog of free uses provided by Article 5 InfoSoc and its national implementations. 121 At the same time, their judicial disapplication can hardly be reconciled with those of CJEU's precedents that assume that the fair balance between copyright and fundamental rights has been realized by the broad and flexible catalog of free uses provided by Article 5 InfoSoc and its national implementations.…”

“…The problem will be how to determine that there has actually been a transfer of ownership of a copy from the right holder to a user and, in particular, that a sale has taken place. 121 Recital 28 of the InfoSoc Directive would seem to confirm such approach when, after pointing out that "copyright protection [. 124 Now, it bears recalling here the CJEU's view that the applicability of the principle of exhaustion must be considered on a broad interpretation of the term sale 119 See § 2 above.…”