Class 24 Copyright, Winter, 2010 International Issues Randal C. Picker Leffmann Professor of...
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Transcript of Class 24 Copyright, Winter, 2010 International Issues Randal C. Picker Leffmann Professor of...
Class 24Copyright, Winter, 2010
International Issues
Randal C. PickerLeffmann Professor of Commercial Law
The Law School
The University of Chicago
773.702.0864/[email protected] © 2005-10 Randal C. Picker. All Rights Reserved.
April 18, 2023 Copyright © 2005-10 Randal C. Picker 2
Organizing Domestic and Foreign Markets
Two Examples DVDs: Technological Separation Quality King: Legal Separation
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[SC: Amazon Incred US]
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[SC: Amazon Incred UK]
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Comparing Prices
Same DVD US: $17.99 UK: £14.99
Exchange Rate (as of April 21, 2005): $1 = £0.510915, $1.91969 = £1
Matching Prices $17.99 = £9.37 £14.99 = $28.77
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[SC: US Encoding]
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[SC: UK Encoding]
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[SC: Amazon on Encoding]
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601. Manufacture, importation, and public distribution of
certain copies (a)
Prior to July 1, 1986, and except as provided by subsection (b), the importation into or public distribution in the United States of copies of a work consisting preponderantly of nondramatic literary material that is in the English language and is protected under this title is prohibited unless the portions consisting of such material have been manufactured in the United States or Canada.
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602. Infringing importation of copies or phonorecords
(a) Importation into the United States, without
the authority of the owner of copyright under this title, of copies or phonorecords of a work that have been acquired outside the United States is an infringement of the exclusive right to distribute copies or phonorecords under section 106, actionable under section 501.
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501. Infringement of copyright
(a) Anyone who violates any of the exclusive
rights of the copyright owner as provided by sections 106 through 121 or of the author as provided in section 106A(a), or who imports copies or phonorecords into the United States in violation of section 602, is an infringer of the copyright or right of the author, as the case may be.
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Quality King
Core Facts L’anza makes shampoo; labels are
copyrighted works L’anza sells at higher prices in the US than
in foreign markets Quality King acts as middleman to bring
shampoo back to US
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Quality King
Ninth Circuit rules for L’anza, saying that applying 109 first-sale defense would gut 602
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Making, Selling, Importing
Hypo: US Printing, Foreign Sale I print a copyrighted book in the US I sell copies in the US for $50 I export copies to the UK and sell them
there myself for $25 Importer buys in the UK for $25, takes the
book to the US and sells for $35 How does Sec. 602 apply to this situation?
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Quality King Result
This is the “round trip” case Books started in US, left and returned Under Quality King, 109(a) first-sale rights
“attach” Attach based on location of printing in US
—“lawfully made under this title” That is independent of where the particular
copy of the book is sold (see fn. 14 on p.661)
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Making, Selling, Importing
Hypo: Foreign Printing, Foreign Sale I print a copyrighted book in the US and sell
copies in the US for $50 I print copies in the UK and sell them there
for $25 Importer buys in the UK for $25, takes the
book to the US and sells for $35 How does Sec. 602 apply to this situation?
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Analysis
This is the one-way case 109(a) doesn’t attach, seemingly, to the
books printed in the UK 602(a) should apply and should block
imports Does this make it possible to enforce price
discrimination in this case?
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Analysis
Only way to enforce the across-country price discrimination is by moving the printing overseas
Contrary to US interests?; compare Sec. 601
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602(a) Rewrite
(a) Importation into the United States, without the
authority of the owner of copyright under this title, of copies or phonorecords of a work that have been acquired outside the United States is an infringement of the exclusive right to distribute copies or phonorecords under section 106, actionable under section 501.
How would Quality King come out?
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Analysis
109 and First-Sale Doctrine Irrelevant under Rewrite
Overinclusive? Would cover US tourist buying book in
England to read on plane home
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But See 602(a)(2)
This subsection does not apply to‑ (2) importation, for the private use of the
importer and not for distribution, by any person with respect to no more than one
copy or phonorecord of any one work at any one time, or
by any person arriving from outside the United States with respect to copies or phonorecords forming part of such person’s personal baggage
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Legislative History From the Congressional Report
Section 602(a) first states the general rule that unauthorized importation is an infringement merely if the copies or phonorecords “have been acquired outside the United States,” but then enumerates three specific exceptions … If none of the three exemptions applies, any unauthorized importer of copies or phonorecords acquired abroad, could be sued for damages and enjoined from making use of them, even before any public distribution in this country has taken place.
Making Copies I
Hypo: Plain Vanilla Author A writes and publishes book Buyer buys it at store for $20 Buyer copies the book and sells copies
Copyright issues?
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Making Copies II
Hypo: US, then UK Author A, a United States citizen, writes and
publishes book in the United States Buyer buys it at store in the US for $20 Buyer moves to the UK with the book and
copies it there and sells copies Copyright issues?
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Answer
Chasing Buyer Buyer is in the UK as are his assets Two possible strategies
Path 1: Sue in the US, get judgment there, and take it to UK to sue to get foreign judgment—the US judgment—enforced there
Path 2: Sue in the UK and get judgment there
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Answer
Focus on the Differences Path 1
US author will be domestic author who published book under US law
Central question in the US case will be one of extraterritoriality: does US law apply to actions taken outside of the US (here the copying in the UK)?
• See that in Subafilms
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Answer
Central question in the follow-on UK case will be about the recognition of foreign judgments (what should a UK court do with a US judgment?)
We see a version of this in Viewfinder• Suit brought in France under French law;
judgment then brought to the US courts for enforcement
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Answer
Path 2 If Author goes directly to the UK, then the
question will be what rights does a foreign author—the US author—have under domestic UK copyright law
That in turn is a question about how the relevant copyright conventions and treaties operate
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Answer
• Berne Convention– http://www.wipo.int/treaties/en/ip/berne/
• Universal Copyright Convention– http://portal.unesco.org/culture/en/ev.php-
URL_ID=1814&URL_DO=DO_TOPIC&URL_SECTION=201.html
• TRIPs– http://www.wto.org/english/tratop_e/TRIPS_e/
TRIPS_e.htm
• WIPO Copyright Treaty– http://www.wipo.int/treaties/en/ip/wct/trtdocs_wo033.html
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Answer
• WIPO Phonograms– http://www.wipo.int/treaties/en/ip/phonograms/
• US Bilateral Treaties– http://www.copyright.gov/circs/circ38a.pdf
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Setting Up Viewfinder I
Hypo Jeff Koons makes an original sculpture Rogers sees it and takes a photograph of it Rogers sells the photograph to a third party
Copyright issues?
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Setting Up Viewfinder II
Hypo Jeff Koons sews an original dress Rogers sees it and takes a photograph of it Rogers sells the photograph to a third party
Copyright issues?
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Viewfinder
Start With http://firstview.com/
French Law http://195.83.177.9/code/index.phtml?
lang=uk L 122-4 L 112-2 L 122-5(3)
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US Recognition of Foreign Judgments
http://www.law.upenn.edu/bll/archives/ulc/fnact99/1920_69/ufmjra62.pdf Focus on Section IV(B)(3):
“A foreign judgment need not be recognized if … (3) the [cause of action] [claim for relief] on which the judgment is based is repugnant to the public policy of this state;”
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Subafilms
Law Design Question Where should US law apply and why?
In the Making Copies II hypo, should US law apply to the UK violation? Should we rely instead on UK law
More Minor Question How does the “to authorize” language at the
top of 106 influence this?
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106. Exclusive rights in copyrighted works
Subject to sections 107 through 121, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in
copies or phonorecords; (2) to prepare derivative works based upon
the copyrighted work;