The first sale exception is a popular topic these days for librarians, consumers and policy makers. It is so trendy right now that it almost outshines fair use, and that’s saying something. This is likely due to some recent events. The Supreme Court decision in Kirstaeng v. John Wiley & Sons, Inc. happily was decided in our favor—yes, any lawfully acquired work can be loaned, rented, or sold even if it was manufactured outside of the United States. Recent media and press interest in the notion of “digital first sale”—or whether consumers (and libraries!) can own or sell an ebook—has (re)surfaced. There is a coalition of first sale proponents, including the Owners Rights Initiative (of which ALA is a founding member), planning their next move after the successful outcome on Kirstaeng. Legal scholars have published new articles on first sale. In addition, the US Copyright Office has declared that they are interested in reviewing first sale, print and digital. Lastly, the United Nations agency responsible for harmonizing copyright law around the world—the World Intellectual Property Organization—has had a long and interesting conversation about first sale (not digital) at a recent meeting of the Standing Committee on Copyright and Related Rights (SCCR).
Five years ago, I attended a meeting with a group of librarians from various countries, where we discussed international copyright law reform. It was then that I learned how unusual the United States first sale model was to the international library community. In fact, many thought that U.S. first sale was improper and certainly out of reach for other countries. First sale or “exhaustion” is the exception that limits the exclusive right of distribution. Once a copy is lawfully acquired, the right of distribution for that copy is exhausted. Obviously, this is the bread and butter of public libraries. Without exhaustion, libraries could not lend books. A secondary market for protected works would be illegal—so long to used bookstores, eBay, and the Salvation Army. Why the opposition to first sale from a bunch of librarians?
Many libraries across the world do not have first sale, or they have what is called a “public lending right” which is a very curious term. It means that the library has the right to lend books if they pay for lending. Thus, you have a right to pay for lending. Every year. Might be a percentage of their acquisition budget or a charge based on the number of circulations.
In a recent conversation with a librarian in Pakistan, I asked if their libraries could loan books. No, not really. There is no copyright exception, and librarians are afraid to lend because the book might not be returned. In addition, librarians that do lend books that then go missing have the cost of the book deducted from their salary.
Back to WIPO, the transcript of the discussion regarding a first sale exception was telling. It was hard for some country delegates to even understand what was being talked about—making copies to give away, or loaning a hard copy and expecting that the book would be returned? The United States delegation explained that sharing has both social and economic benefits, but Greece was convinced that if a library loaned books (for free!) no one would buy books. (Where have we heard that before?)
Why is our copyright law so different from others? Because the purpose of our copyright law is the advancement of learning. Don’t let anyone tell you differently because it’s in the Constitution! The country’s founders were sincere about the idea of democracy. They thought that a successful democracy demands that all people know what’s going on, and should have every opportunity to access information in order to learn. Thus, the limited, statutory copyright monopoly is utilitarian and exists to encourage authors and other creators to make their works available to the public. Sharing works (after lawfully acquired) enhances this dissemination of information.