(Art. 19 para. 3(a) CopA)
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 or Amazon.