US Copyright Law Moving Along

This is an eventful week so far for those interested in US copyright matters. As many will have read, on Tuesday the Supreme Court of the US released a 6-3 ruling in Kirtsaeng v. John Wiley & Sons, Inc., in which it addressed the reach of the first-sale doctrine in respect of works published for foreign markets, or—stated another way—the reach of a copyright owner’s control over those products. Twitter continues to show joy over the decision among librarians and consumers of information, along with dismay among others concerned with importation and copyright control.

In Opinion analysis: Justices reject publisher’s claims in gray-market copyright case, SCOTUSblog (Mar. 19, 2013, 12:22 PM), Ronald Mann of SCOTUSblog nicely summarizes the ruling, in Plain English:

In Kirtsaeng v. John Wiley & Sons, the Court considered the “first sale” doctrine of copyright law. This is a rule that means that when a publisher sells a copyrighted work once, it loses any right to complain about anything later done with that copy. This is the rule that makes it okay to resell a used book to a used-book store, and for that store in turn to sell used books to its customers.

The issue in Kirtsaeng was whether the first-sale doctrine applies to copyrighted works manufactured overseas. Kirtsaeng bought textbooks in Thailand, where they are cheap, brought them to the United States, and resold them at a large profit. The lower courts said he couldn’t do this, and ordered him to pay damages to the publisher (John Wiley). The Supreme Court disagreed. The Justices said that the first-sale doctrine applies to all books, wherever made. So even if you buy a book made in England, you can resell it without permission from the publisher.

[SCOTUSblog / CC BY-NC-ND 3.0]

And Wednesday afternoon, US Register of Copyrights Maria Pallente delivered a Statement before the US House of Representatives Judiciary Committee’s Subcommittee on Courts, Intellectual Property and the Internet. Today’s Statement, “The Register’s Call for Updates to U.S. Copyright Law,” frames her well-circulated recent lecture at Columbia University, The Next Great Copyright Act. (The latter lecture will be published as 37 Colum. J.L. & Arts (forthcoming Spring 2013).)

Her remarks on the state of US copyright law are not without force; the written Statement includes passages such as this:

I think it is time for Congress to think about the next great copyright act, which will need to be more forward thinking and flexible than before. Because the dissemination of content is so pervasive to life in the 21st century, the law also should be less technical and more helpful to those who need to navigate it. …my point is, if one needs an army of lawyers to understand the basic precepts of the law, then it is time for a new law.

She remarked with some specificity and addressed, for example, libraries, educational institutions, enforcement, and licensing regimes:

The list of issues is long: clarifying the scope of exclusive rights, revising exceptions and limitations for libraries and archives, addressing orphan works, accommodating persons who have print disabilities, providing guidance to educational institutions, exempting incidental copies in appropriate instances, updating enforcement provisions, providing guidance on statutory damages, reviewing the efficacy of the DMCA, assisting with small copyright claims, reforming the music marketplace, updating the framework for cable and satellite transmissions, encouraging new licensing regimes, and improving the systems of copyright registration and recordation.

The time is ripe for further developments in US copyright law—as elsewhere and, perhaps, as always. It will be interesting to see if the Next Big Change indeed comes in the form of the Register’s hoped-for Next Great Copyright Act.


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