Is it legal to sell digital downloads?

I have paid for and legally downloaded a lot of music tracks, films and ebooks over the past couple of years and I now want to sell some of them. I know that I can sell a CD, a DVD or a book, but what is the legal situation with downloads?
Jamie Bell

This is an interesting query and one that many people will want to know the answer to, considering they have paid for digital downloads. Mr Bell is able to sell physical DVDs and CDs, as well as books, which law firm Pinsent Masons explains is because of the ‘exhaustion of rights’ principle, which allows an ‘original’ copy of something to be resold.

However, the way the law currently stands, he can’t legally sell digital versions. This is because, in most instances, they would be seen as copies of the original file. Under current copyright law, it is illegal to make copies of content on CDs and DVDs, or of downloads.

Making copies of content from CDs or DVDs so they can be played on different devices is common practice and the music and movie industry turns a blind eye to the fact people are, technically, breaking the law. It would not be practical to pursue such cases legally and would serve no useful purpose.

The Government wants to change this outdated law and introduce recommendations from the Hargreaves report, which suggested people should legally be able to make copies of digital files purely for personal use. This right wouldn’t extend to making a copy and then selling it on, even if the original was deleted.

The only way Mr Bell could do this under the exhaustion of rights principle is to sell the hardware that the media was originally downloaded to; for example his PC hard disk, external hard drive, or music player. However, this may break the terms and conditions of contract, which may preclude selling the media on.

But selling on legally bought downloads is already something people are interested in. US company Redigi has tried to do this and currently has found itself in trouble. In the future others will also probably try to test the boundaries. But we expect to see fierce opposition to this from the entertainment industry.

Are downloads 'tangible goods'?
Changes to the way digital downloads may be perceived under the new European Consumer Rights Directive could open up a whole new legal minefield about whether someone can sell on digital downloads.

Currently downloads are not considered ‘tangible goods’. If the new directive considers downloads to be goods, it means the exhaustion of rights principle may possibly be applicable.