International First Sale Doctrine and the Potential Impact of Kirtsaeng Case in Academic Publishing

Historically, copyright holders have held the exclusive right to copy and distribute their work. To copy and distribute or to sell a copy of work, one should gain permission from the copyright owner. Once a lawful transfer is made, the new owner of the work may sell that particular copy without the copyright owner’s permission; once copyright owners engage in the first transaction, they can no longer claim copyrights. This concept has been developed and codified as the “doctrine of first sale.” This is a simple concept in a insular market and this copyright exhaustion has long been allowed within the boundaries of markets in close proximity. The doctrine becomes more difficult to justify when work is distributed within vastly different economic markets internationally. The price discrimination in these markets makes for an unexpected damage to the copyright owner’s profit when the doctrine of first sale is extended to those markets. Due to these market realities, the international community has not adopted a doctrine of international exhaustion, that is, applied the doctrine of first sale worldwide. The question of whether the doctrine of first sale is acceptable in international trade was raised in the United States Supreme Court in 2013. In Kirtsaeng v. John While & Sons, the Court has held that consumers have the right to resell items after making the “first sale” without seeking permission of the registered copyright holder, regardless of the location of manufacturing. This holding was widely lauded as a victory for consumers, but the impact on international consumers is yet unknown.