On March 19, 2013, the U.S. Supreme Court handed down a decision that could have had a number of disastrous outcomes for libraries.
Kirtsaeng v. Wiley involved a graduate student from Thailand named Supap Kirtsaeng who bought cheap textbooks abroad and resold them in the U.S. John Wiley and Sons sued Kirtsaeng for copyright infringement, claiming that he did not have the right to import and then resell these cheaper copies that they created specifically for sale in markets that cannot afford the higher prices of the American market. Kirtsaeng argued that he was protected under Section 109 of the Copyright Act, known as the First Sale Doctrine.
The principle of first sale states that if you have acquired a lawfully made copy of a copyrighted work then you can dispose of that copy however you want. You can lend it to a friend, resell it, donate it to the library, or even throw it in the trash. It is first sale that allows libraries to lend the materials in their collections without having to ask for or pay rights holders for permission.
In the Kirtsaeng case, the question came down to whether or not first sale applies to copies of works that are made by the rights owner but are produced outside of the U.S. Wiley and two lower courts claimed that it does not. Fortunately for libraries, the Supreme Court reversed the lower courts’ decisions in a 6-3 ruling that states that first sale does apply to any legally made copy of a work, regardless of where it was made.
How does the decision affect libraries? Let’s consider a number of ways this decision could have hurt OSU Libraries, and other academic and research libraries, if the Supreme Court had upheld the lower court decisions. First, OSU Libraries has a number of foreign language collections, including Chinese, East European and Slavic Studies, and Japanese. Many of the works in these collections were originally published in foreign countries. If first sale does not apply to these works, OSU Libraries would have to make a tough decision. Do we try to get permission from all of the rights holders or do we stop allowing access to the collections? Trying to track down all rights owners could be impossible and impractical, especially for older works whose creators may be deceased and whose heirs may be unknown. Additionally, the potential cost of licensing permission from hundreds, or maybe thousands, of rights owners would be cost prohibitive. Ultimately OSU Libraries would have to deny access to a large number of works in order to avoid copyright infringement.
While foreign language collections are the most obvious group of foreign made works in the library, OSUL and other libraries also collect a large number of English language materials that are actually made abroad. Jonathan Band and Jonathan Gerafi recently reported that a majority of general publishers, academic publishers and record labels are owned by foreign companies. Many of their works are made in Europe. If the Supreme Court ruled that the first sale doctrine did not apply to works made abroad, this would mean that even many of the English language works in the OSU Libraries’ collections could not be legally shared without permission from the copyright owners. Compounding this problem is the fact that most American companies now outsource the actual printing of books or making of CDs and DVDs to countries where labor costs are much cheaper. It would be almost impossible for a library to know where a work was actually created. All of this would have been highly detrimental to libraries.
The Supreme Court was aware of the potential impact to libraries when making its ruling. The Library Copyright Alliance (LCA) submitted an amicus brief to the Supreme Court that spelled out all of these potential problems if first sale doesn’t apply to foreign made copies. Justice Breyer, who wrote the Court’s majority opinion in this case, specifically referenced the LCA’s brief as a factor in the decision.
The decision in this case is great for libraries. It means that we can continue to pursue our primary function of providing access to the information that we hold in our collections. Libraries have worked under the belief that all works that we collect, whether made in the U.S. or abroad, can be legally shared with our patrons. This decision reinforces that interpretation of the law.
For more analysis of the case, please read Kenneth Crews’ blog. For a more in depth look at how the case affects libraries, and the future possible reactions from publishers and Congress, read the issue brief released by the Library Copyright Alliance.