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

On Tue, 11 Aug 1998, 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.)
>
> Here's the text from the bill:
> H.R. 2281 Title IV
> SEC. 417. FIRST SALE CLARIFICATION.
> Section 109(a) of title 17, United States Code, is amended by striking
> the first sentence and inserting the following: "Notwithstanding the
> provisions of section 106(3), the owner of a particular lawfully made
> copy or phonorecord THAT HAS BEEN DISTRIBUTED IN THE UNITED STATES
> by the authority of the copyright owner, or any person authorized by the
> owner of that copy or phonorecord, is entitled, without the authority of
> the copyright owner, to sell or otherwise dispose of the possession of
> that copy or phonorecord.".[emphasis added]
>
>
> I find this provision extremeley disturbing. It was included at the
> 12th hour without ANY debate or consideration by committee and makes
> a dramatic change in the copyright law! I'm confident that few
> congresspeople, staffers or commentators even knew it was in the bill
> as the vote occurred.
>
> As I read the provision...
>
> 1) ANY copyrighted work, including practically ANY product with a label,
> that is initially sold overseas would no longer be protected by the
> first-sale doctrine if it shows up in the U.S. Is this correct? Would
> international treaties extend control to sales from one foreigner to
> another?
>
> 2) Consumers lose. The result is very harmful to consumers because
> downward pressure on prices in other countries won't be translated to
> downward pressure on prices here. (Currently large retailers can keep
> an eye on foreign markets and purchase goods there to re-sell here.)
>
> 3) Libraries? I am only beginning to explore the impact on libraries and
> inter-library loan. If I buy a Tom Clancy book in Heathrow airport,
> come home and give it to my friend or my local library, am I now an
> infringer??
>
> Ideas or Comments??

Thank you to everyone who has taken on the discussion of Section 417 of H.R. 2281. I have another hypo to add to the mix:

On a trip to Paris, a Californian art collector purchases a legally made copy of a 1980 painting by a New York artist. With Section 417, wouldn't the collector have to seek out and get the permission of the U.S. copyright holder in order to legally bring the painting home?

Is the answer the same if the collector purchased the original painting in Paris? If so, won't this be a huge headache for the exchange of special museum exhibits or do such exchanges already involve communication with copyright holders?

Thanks!!

   Laurel Jamtgaard
   Policy Analyst to:

     Association of Research Libraries 
     Special Libraries Association
       202.296.2296  FAX:202.872.0884   laurelj[_at_]arl.org