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

On Tue, 8 Sep 1998, Christopher A. Mohr <chrismohr[_at_]sprintmail.com> wrote:
>
> On Tue, Sep 08, 1998, Laurel Jamtgaard <laurelj[_at_]arl.org> wrote:
> >
> > 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?
>
> Neither of your hypos cause a problem, it seems to me.
>
> 602(a)(1) allows importation of copies for personal use of no more
> than any one work at any one time. Once imported, the owner of the
> lawful copy would have the same display rights as any other owner of
> a tangible copy. Furthermore, a library may import five copies of a
> book for lending purposes, or one copy of a movie for archival
> purposes. Nothing in the amendment to 109 changes those provisions.
>
> Purchase of the original painting and importation of that painting is
> unaffected; the copyright act's importation provisions only apply to
> copies. It's kind of a curve ball; the provisions really at issue are
> buried in the "back" of the statute.

Thanks Chris. I understand that the importation hypos would be excused under exceptions to 601 and 602. But I'm still puzzled by the interplay between 601/602 and the proposed new 109. I understand that the proposed change is meant to give teeth to 601 and 602 and that both of those provisions have some exceptions built in for libraries BUT 601 and 602 only deal with IMPORTATION. The change to 109 seems to create a bubble of infringement for DISTRIBUTION WITHIN THE U.S. that would not be covered by the exceptions to 601 and 602.

What happens with works that are first distributed overseas but which make it back to the U.S. whether through exceptions to 601/602, through unchallenged illegal imports, or by permission of the copyright holder? Does the first sale doctrine protect the actions of the "innocent" U.S. purchasers of the legal and illegal imports?

As a practical matter, would a library need to verify where a book had been first distributed before acquiring the book? Under a strict interpretation of the change proposed in H.R. 2281 SEction 415, wouldn't any library or individual be liable for the domestic lending or sale of a book (with a U.S. copyright holder) that was first distributed overseas, even though the library or individual acquired the book in the U.S.?

In book covers I can often find information about where it was printed and who the publisher was at that time but I have never seen any notice of "published first in XX country." How can one know?

At this point I think the proposed change to 109 will have a broader impact than an initial read might suggest. It seems to do more than mereley overturn L'anza and give weight to 602 and 601 of the copyright Act. It seems to place transactions that take place solely WITHIN the U.S. under a cloud of possible infringement.  

Someone please persuade me that I'm wrong about this.

Thanks!!
Laurel

   Laurel Jamtgaard
   Policy Analyst to:

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