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

[exchange regarding Section 417 of H.R. 2281 which has passed the House and is now being addressed in the Senate. Relevent sources of law are Copyright Act sections 106, 109, and 602 as well as the Quality King v. L'anza Supreme Court decision (March 1998). Section 417 is at the bottom of this note]

On Thu, 10 Sep 1998, Vance R Koven <vrkoven[_at_]world.std.com> wrote:
>
> On Tue, 8 Sep 1998, Laurel Jamtgaard <laurelj[_at_]arl.org> wrote:
> >
> > I would expect that museum exhibits would not be a problem unless
> > the works were actually sold, leased or donated while in the U.S.
> > (e.g. possession changed hands). But exchanges between U.S. museums
> > would be trickly if any of the works exchanged had been originally
> > distributed by the U.S. copyright holder overseas... Is anyone else
> > confused by this?
>
> What about the display right? If the "gray market" copy was not deemed
> a licensed copy in the US, then the copyright owner would have all its
> rights under US law, including the right to prevent public display of
> an artwork or audio-visual work, or performance of a play or poem, etc.
> without regard to the exchange of value for the copy.

But 109(a) states "Notwithstanding the provision of section 106(3)" -- the right of distribution. So isn't the first-sale doctrine only applicable to the distribution right and not to the display right?

I imagine that the retailers who filed amicus briefs in the Quality King case might be communicating the Senators about Section 417. Does anyone know of other groups that have expressed concern? Used book retailers perhaps?? (Please communicate to me offline if you know of any.)

Although the Supreme Court decided the Quality King case on pure statatory interpretation grounds, I think the First-sale doctrine has basis in the Constitution. Anyone know of a good source on this topic or on the history of the first-sale doctrine?

Also, what would the proposed change mean for foreign copyright holders who distribute their works in the U.S.? Does Section 417 of H.R. 2281 meet the requirement of TRIPS?

 Laurel

   Laurel Jamtgaard
   Policy Analyst to:

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

H.R. 2281
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] Received on Fri Sep 11 1998 - 15:52:50 GMT