Abstract The article examines the applicability of the exhaustion doctrine under EU copyright law to hybrid software products—works that combine computer programs with expressive content like user interfaces, icons, fonts and templates. According to the case law of the Court of Justice of the European Union, whereas the Software Directive permits digital exhaustion for computer programs, the InfoSoc Directive prohibits it for other types of works. This divergence creates significant legal uncertainty for hybrid products. To address this problem, the article proposes a ‘predominant purpose’ test grounded in the lex specialis relationship between the two directives. This test evaluates hybrid products along a spectrum of software hybridization, ranging from pure functional code to predominantly expressive works. The article outlines a multi-factor analysis considering the proportion of components, functional integration and intended consumer use. By prioritizing the product’s primary function, this approach aligns with the rationale of the exhaustion doctrine, while preventing rightholders from circumventing consumer rights by simply embedding minimal expressive content into programs that are intended to be functional.
Tito Rendas (Fri,) studied this question.