EU law gives more copyright protection than US after 'first sale' US court ruling, says expert

The US Supreme Court said that Thai citizen Supap Kirtsaeng had not breached copyright laws when he re-sold imported copies of textbooks in the US. Kirtsaeng made a profit on the books because of the low sale price in Thailand where they were bought on his behalf for re-sale.

Publisher John Wiley & Sons sued Kirtsaeng for copyright infringement, arguing that the importing and sale breached its exclusive right to distribute the books in the US.

Kirtsaeng argued that he was protected by the 'first sale' right. This is an exception to copyright law which gives someone who has bought a legitimate copy of a copyrighted work already available on the market the right to re-sell it without the copyright holder's permission. The legitimacy of the first sale is said to 'exhaust' the copyright holder's rights.

The US Supreme Court said that exhaustion of the copyright owner's rights in the purchased copy takes place even when the item in question has been bought abroad.

"We ask whether the 'first sale' doctrine applies to protect a buyer or other lawful owner of a copy (of a copyrighted work) lawfully manufactured abroad," said the US Supreme Court's ruling (74-page / 355KB PDF).

"Can that buyer bring that copy into the United States (and sell it or give it away) without obtaining permission to do so from the copyright owner? Can, for example, someone who purchases, say at a used bookstore, a book printed abroad subsequently resell it without the copyright owner’s permission?" it said. "In our view, the answers to these questions are, yes. We hold that the “first sale” doctrine applies to copies of a copyrighted work lawfully made abroad."

Intellectual property law specialist Indradeep Bhattacharya of Pinsent Masons, the law firm behind Out-Law.com, said that the ruling created a new phenomenon in US copyright law.

"The US Supreme Court’s decision effectively introduces the principle of international exhaustion into US copyright law," he said. "This contrasts with the current European regime which has a principle of regional exhaustion where only copyright works that are put into circulation in the EEA give rise to exhaustion)."

"Once again the divergence of US and EU jurisprudence on copyright issues is stark – however, this time for a change the EU appears to have a more brand-owner friendly position," said Bhattacharya.

“We are disappointed that today’s copyright decision by the US Supreme Court ignores broader issues critical to America’s ability to compete in the global marketplace," said Tom Allen, chief executive of trade body the Association of American Publishers. “The decision will have significant ramifications for Americans who produce the books, music, movies and other content consumed avidly around the world."

"The Court’s interpretation of the ‘first sale’ provision of US copyright law will discourage the active export of US copyrighted works. It will also reduce the ability of educators and students in foreign countries to have access to US-produced educational materials, widely considered the world’s gold standard," he said.