Memo: The “First Sale” Doctrine(s) | jdickins | June 28, 2012

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Memo: The “First Sale” Doctrine(s)

Section 109 contains two of the more important limitations on the copyright owner’s exclusive rights, the so-called “first sale” doctrine(s). Section 109(a) reads as follows:

Notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord. . . .

Notice several things about this provision.

1. “Notwithstanding the provisions of 106(3) . . .” Sec. 106(3), of course, is the right to distribute copies of the copyrighted work to the public. So this section is a limitation on that right and that right only; in other words, this provides a potential defense to a claim that the defendant has violated the plaintiff’s §106(3) rights, and not to a claim that the defendant has violated the plaintiff’s rights under any other part of §106 (i.e., the reproduction right, the public performance right, etc.).

2. It can only be asserted by the “owner” of a particular copy or phonorecord. By so specifying, the statute is presumably excluding others who might possess copies or phonorecords – people who are not “owners.” [Who might they be?] [See §109(d), which makes this point explicitly]

3. The owner of a copy/phonorecord can assert this defense only if the copy/phonorecord was “lawfully made.” [What might that exclude, do you think?] If those conditions are satisfied, you may “sell or otherwise dispose” of the copy/phonorecord without the authority of the copyright owner (notwithstanding that such sale/disposal might otherwise constitute a violation of the copyright owner’s rights under §106(3)).

This is called the “first sale doctrine” because it allows the copyright owner to control the first sale of a copy of her work, but only the first sale. Example: I have written a book, and I own the entire copyright in the book. Nobody may distribute copies of that book to the public without my permission. But once I give someone – Oxford University Press, say – the right to do that, and you purchase a copy at the bookstore, you can then re-sell your copy (or dispose of it however you like) without my permission. I control the first sale, but not any subsequent sale.

Used bookstores, for instance, could not operate as they do without this provision; they can distribute copies of copyrighted books to the public without obtaining permission from the copyright owner to do so (and, therefore, without paying the copyright owner any royalty) because they are protected by §109(a). The same holds for video rental stores – once Blockbuster buys a copy of a DVD from an authorized seller (“lawfully made”) it can dispose of that copy however it wishes (including by rental to customers).

Section 109(c) has a similar provision: Notwithstanding the provisions of section 106(5), the owner of a particular copy lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to display that copy publicly, either directly or by the projection of no more than one image at a time, to viewers present at the place where the copy is located.

Again, just parsing the language in this paragraph establishes the elements of the defense:

1. It only applies to assertions of a violation of 106(5), the right of public display.

2. It only applies to owners (or persons authorized by owners) of copies.

3. It allows the owner of a copy to display that copy publicly, but only “to viewers present at the place where the copy is located.”

Think “art galleries” or “museums.” If they “own” copies of paintings or sculptures, they are permitted, notwithstanding the copyright owner’s exclusive right to display those copies publicly, to do so, provided they only do so to viewers “present where the copy is located.” [What do you suppose that latter phrase excludes from the defense? What can’t the art gallery or museum do with the copy it owns?]

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June 02, 2014

Professor David Post

2012-06-27

H2O has permission to use this resource.

copyright memo first-sale

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