Gęsicka Daria Katarzyna, Copyright law beyond borders? Evolution of the first sale doctrine in the copyright tradition legal systems - American and Canadian case study

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Opublikowano: ZNUJ. PPWI 2016/1/144-159
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Copyright law beyond borders? Evolution of the first sale doctrine in the copyright tradition legal systems - American and Canadian case study

Recent years have experienced growth of public and judicature's interest in the two market-oriented twin institutions of intellectual property law, namely, the first sale doctrine and the exhaustion principle, that were born almost respectively in the United States of America and Germany around the turn of 19th and 20th centuries . Intellectual property rights, including copyrights, equip their holders with a bundle of exclusive negative rights, the rights which allow holders to prevent third parties from taking up particular actions or behaviours. One of such exclusive rights is the right of distribution which entitles the holder to interdict any third party vending copies of their works in the marketplace . Both institutions – the first sale doctrine and the exhaustion principle – constitute a foundation of parallel importation as they define borders of the exclusive distribution right, and, at the same time, the scope of users' authorization to resell copies of works. The first sale doctrine is an institution typical for copyright tradition legal systems, so it can be encountered in copyright law of the United States (§ 109 (a) of the U.S. Copyright Act), Canada (sect. 3(1)(j) of the Canadian Copyright Act), or Australia (section 31 of the Copyright Act of 1968). The crux of the institution is that once a copyright holder transfers ownership of a copy of his or her work onto a third party, their right to control the distribution of that particular copy has exhausted . The doctrine was first formulated in the beginning of the 20th century in Bobbs-Merrill v. Straus precedent case. Soon, the consecutive judgments followed and there were legal provisions on the first sale doctrine introduced into domestic legislation. In view of uneven character of the distribution right which was originally supposed to be an umbrella right encompassing all acts of distribution, including quick on-demand online services, and ended up as one of the exclusive rights alongside communication to the public right, justifies questioning of our today's understanding of the concept of the copyrights exhaustion, and the first sale doctrine.

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