Re: Bye Bye First-Sale Doctrine (WIPO bill)

On 13 Aug 1998 Joseph Liu <liu3[_at_]law.harvard.edu> wrote:
>
> On 8/11/98, Laurel Jamtgaard <laurelj[_at_]arl.org> wrote:
> >
> > FYI. The Digital Millenium Copyright Act passed by the House last
> > week contains a significant last-minute addition that, if included
> > in the final bill, would overturn a March 1998 Supreme Court
> > Decision, Quality King Distributors, Inc. v. L-Anza Research
> > International, Inc. (Court held that the "First-sle" doctrine
> > applies to U.S. copyrighted works sold overseas. The result in
> > the Supreme Court case was that shampoo bottles (with copyrighted
> > labels) sold overseas for a lower price than they were sold in the
> > U.S. could be purchased overseas and re-sold in the U.S. without
> > seeking the copyright holder's permission.)
>
> If Congress wanted to bar "gray market" goods or "parallel imports"
> (and I know nothing about policy reasons for or against such
> regulation), using copyright law (to regulate the labels, no less)
> seems like a colossally ill-suited way of doing so. Can anyone
> think of any legitimate *copyright* justification for this rule?

Here are some ideas:

(A) Quality and Brand Integrity. Suppose the exported shampoo were a different quality than the product sold in the U.S. -- in the same bottle. Using the same fancy bottle, rather than a different one, helped contain costs. This might also apply to a book that was bowlderdized or edited for some foreign market but printed with the same title. A civil suit under the Lanham Act in which a manufacturer or author would claim his own label misrepresented his own product seems to me to be unlikely.

(B) Safety. Suppose the exported product contained ingredients not approved by the Food and Drug Administration for the U.S. but OK abroad. Copyright control is easier than asking the FDA to intervene.

(C) Privacy. Copyright is held by an estate in a work that includes information that is embarrassing to family members. Publication abroad would satisfy the interest of the estate in maximizing its value. Prevention of imports would satisfy the family members' desire for privacy.

(D) Fostering U.S. investment. Copyright law once included a barrier to imports of works by U.S. authors printed abroad. This forced U.S. production of works by U.S. authors. There is no reason why the law should not foster investors in copyright in the same way that it protected investors in print, paper, and binding.

Albert Henderson, Editor, PUBLISHING RESEARCH QUARTERLY 70244.1532[_at_]compuserve.com Received on Tue Aug 18 1998 - 18:34:36 GMT