Before Christmas, most indications were that the European Union and the UK could not agree, and so Brexit without agreement seemed the most likely scenario.
Then, after the last minute, they managed to reach compromises on the most controversial issues, they also agreed on the level playing field and fishing rights. The latter was not one of the most serious economic issues, but it became a symbolic, prestigious question of how the negotiating parties could defend their interests.
However, what does fish have to do with the second-hand software trade? The only thing is that the agreement opened up the possibility of regulation later on and the possibility of selling used software between the two parties.
As I described in my previous article, the key issue for the topic is how the parties recognize exhaustion. There is no change regarding the past, all previous transactions remain valid.
The text of the new agreement is interesting for future transactions. The agreement regulates the details of the divorce through 1256 pages. Of these, 23 pages are specifically about intellectual property rights. There is one sentence about exhaustion:
This Title does not affect the freedom of the parties to determine whether and under what conditions the exhaustion of intellectual property rights applies.
That is, the agreement does not affect the freedom of the parties to determine the conditions for the exhaustion of intellectual property rights.
We already know that the UK issued a statement back in 2018 stating that they would accept the principle of EU exhaustion even after leaving. Based on this, software activated within the EU can still be sold unchanged in the UK.
However, no such legislation has yet been enacted on the EU side, so software first activated in the UK cannot be sold within the EU after 1 January. Given the number of areas covered by the agreement, the exhaustion of second-hand software is probably not on the European Parliament’s list of key issues, so it is not certain that the situation will change soon.
