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


[SC: Amazon Incred US]


[SC: Amazon Incred UK]


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


[SC: US Encoding]


[SC: UK Encoding]


[SC: Amazon on Encoding]


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.


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.


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.


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


Quality King

Ninth Circuit rules for L’anza, saying that applying 109 first-sale defense would gut 602


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?


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)


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?


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?


Analysis

Only way to enforce the across-country price discrimination is by moving the printing overseas

Contrary to US interests?; compare Sec. 601


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?


Analysis

109 and First-Sale Doctrine Irrelevant under Rewrite

Overinclusive? Would cover US tourist buying book in

England to read on plane home


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


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?


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?


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


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


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


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


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


Answer

• WIPO Phonograms– http://www.wipo.int/treaties/en/ip/phonograms/

• US Bilateral Treaties– http://www.copyright.gov/circs/circ38a.pdf


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?


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?


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)


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;”


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?



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;

class 24 copyright, winter, 2010 international issues randal c. picker leffmann professor of...

Documents

u importation

owner of copyright

copyright owner

infringement of copyright

dvd u us

us encoding slide

n matching prices u

foreign sale u