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The Parallel Import and the “First Sale” Doctrine Survive, For Now

American libraries celebrated a legal victory last week in the Supreme Court’s disposition of Kirtsaeng v. John Wiley & Sons.  The Court ruled that the appellant’s legal purchase of inexpensive books in Thailand and resale of the same books in the United States at a higher price, a form of arbitrage known as a parallel import, is protected  under the “first sale” doctrine: the principle that someone who purchases a single copy of a copyrighted work owns that one copy and may resell it or give it away without needing permission from the copyright holder.
The libraries’ celebration may be premature.  Since 2010, the United States has been engaged in multilateral negotiations to form the Trans-Pacific Partnership (TPP), a proposed free trade zone for Pacific Rim nations.  Among other things, the TPP proposes a new intellectual property regime that would effectively nullify the Kirtsaeng ruling by banning parallel imports and severely restricting the “first sale” doctrine.  Of further concern to libraries are several other items under negotiation that have the potential to rewrite substantial portions of U.S. and international intellectual property law.
The nations participating in the ongoing TPP negotiations appear to be in some disagreement over the final form of any intellectual property provisions, but are very likely to revisit the issue in the 17th round of TPP negotiations this May 15-24.  Anyone interested in intellectual property law might want to consider following these negotiations.

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