Peter Hirtle, senior policy advisor in the Cornell University Library with a special mandate to address intellectual property issues, comments on the implications for the Supreme Court case Kirtsaeng v. John Wiley & Sons, Inc., which will hear oral arguments Oct. 29.
He says:
“In the decision finding Kirtsaeng guilty of copyright infringement that is on appeal to the Supreme Court, the Appeals Court took a radical position. It concluded that the first-sale-right applied only to items manufactured in the United States; the control of the on-going distribution of foreign-produced items belonged to the copyright owner. If upheld, the implications of this decision are staggering: · “Libraries could no longer rely on first sale to justify the lending of foreign-published works. And since most American publishers use foreign printers to actually produce books, those, too, may need the permission of the copyright owner in order to be lent.
· “Museums could not display art from Europe, Asia, or Africa without first securing permission and probably paying a fee.
· “Items produced abroad that have copyrighted logos, software, or other features could not be sold on eBay or in flea markets. If your Toyota contained parts made in Japan, those parts are likely to have some copyrighted content, and you would need Toyota’s permission to sell your car.
· “Smart manufacturers would move all production off-shore, since foreign manufacture would give copyright owners an immense set of monopoly rights that are unavailable to domestic manufacturers. “The case highlights the problems that can result when support for specific business models - in this case, differential geographic pricing is built into the Copyright Act. The Court should make clear that `first sale’ rights apply to all copyrighted works, regardless of place of manufacturing. The issues surrounding the regulation of so-called `gray-market goods’ are best addressed outside of copyright law.”
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