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

On 9/9/98, Laurel Jamtgaard <laurelj[_at_]arl.org> wrote:
>
> 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.
>

So you can bring it back, but you can't later resell it in the U.S.? I wonder if that's what the drafters really intend.

Mark Lemley
Visiting Professor, Boalt Hall School of Law University of California at Berkeley (fall 1998) mlemley[_at_]mail.law.berkeley.edu
Professor of Law
University of Texas School of Law
Of counsel, Fish & Richardson P.C.
mlemley[_at_]mail.law.utexas.edu Received on Thu Sep 10 1998 - 17:19:51 GMT