Gavin Howe
The first sale doctrine is a principle in copyright law that allows the purchaser of a copyrighted work to treat that copy as they wish, provided they do not infringe on the copyright owner's exclusive rights. This means the copy can be resold, rented, given away, or destroyed. The doctrine was first recognised by the Supreme Court of the United States in 1908 and subsequently codified in the Copyright Act of 1909. It is an important limitation on copyright law, allowing consumers to use and distribute copyrighted works without the need for constant permission from the copyright owner.
| Characteristics | Values |
|---|---|
| What is the first sale doctrine? | The first sale doctrine is a limitation to the protections that copyright law extends to creators. |
| Who does it apply to? | The first sale doctrine applies to the owner of a particular copy of a copyrighted work. |
| What does it allow the owner to do? | The owner can sell, lease, loan, gift, display or otherwise dispose of the copy. |
| What does it not allow the owner to do? | The owner cannot reproduce, adapt, publish, or perform the work without the authorization of the author. |
| Does it apply to digital copies? | The first sale doctrine does not apply to the resale of copyrighted materials in digital form. |
| Does it apply to licensed works? | The first sale doctrine does not apply to licensed works as a license does not transfer ownership rights. |
| Does it apply to rental of software and sound recordings? | The first sale doctrine does not apply to the rental of software and sound recordings. |
| Does it apply to unauthorized copies? | The first sale doctrine does not apply to unauthorized copies. |
| Does it apply to trademark law? | The first sale doctrine can be applied to trademark law. |
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What You'll Learn
The first sale doctrine and copyright infringement
The first sale doctrine is a limitation to copyright law that permits the purchaser of a legal copy of a copyrighted work to treat that copy in any way they desire, as long as the copyright owner's exclusive rights are not infringed. This means the copy can be destroyed, sold, given away, or rented. For example, a store that purchases a movie on DVD is entitled to rent it out without paying royalties to the copyright owner.
The first sale doctrine is codified at 17 U.S.C. § 109, which provides that an individual who knowingly purchases a copy of a copyrighted work from the copyright holder receives the right to sell, display, or otherwise dispose of that particular copy, notwithstanding the interests of the copyright owner. The right to distribute ends once the owner has sold that particular copy.
The first sale doctrine does not permit the owner of a copyrighted work to reproduce, adapt, publish, or perform the work without the authorization of the author. For example, the owner of a book of copyrighted art prints cannot separate the prints, frame them, and sell them separately. The doctrine also does not apply to digital goods, as these are not distinct, tangible items that can change hands after a sale.
The first sale doctrine has been a source of confusion in criminal copyright prosecutions. Defendants frequently resist prosecution by claiming they believed their actions were permitted under the first sale doctrine. The United States must prove that the copyrighted work was not the subject of a first sale, though some cases hold that the defendant must raise this as an affirmative defense. The first sale doctrine also does not protect a defendant who makes unauthorized reproductions of a copyrighted work.
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Limitations of the doctrine
The first sale doctrine is a legal principle that limits the copyright owner's control over a particular copy of their work after it has been lawfully sold. However, it has its limitations.
Firstly, the doctrine does not permit the owner of a copyrighted work to reproduce or create derivative works from it. For example, the owner of a book of copyrighted art prints cannot separate the prints, frame them, and sell them separately. The doctrine only allows the resale of the original product containing the copyrighted work and does not extend to any reproductions or derivatives.
Secondly, the first sale doctrine only applies to the owner of the copyrighted work. It does not extend to individuals who possess the work but do not own it. For example, if a store rents a lawfully-made copy of a movie, the person renting it cannot rent it to someone else. Only the store, as the owner of the copy, has the right to rent it out.
Thirdly, the doctrine does not apply to licensed works or digital transmissions. A license does not transfer ownership rights, and most software and digital content are licensed, not sold. Therefore, the first sale doctrine would not apply to such licensed content.
Additionally, the doctrine does not apply to rentals of software and sound recordings. While the doctrine generally allows for the rental of purchased goods, there is a specific exception for computer programs and sound recordings.
Lastly, the first sale doctrine does not apply to unauthorized or illegally made copies. It only applies to copies that are "lawfully made" under the authorization of the copyright owner.
It is important to note that the first sale doctrine has been a source of confusion in criminal copyright prosecutions. While it can serve as a defence, there are limitations, and understanding its scope and exceptions is crucial to avoid copyright infringement.
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First sale doctrine and trademarks
The first sale doctrine allows the resale of items bearing a trademark, such as a logo or brand name, after the trademark owner has sold those items. This doctrine is based on the idea that the IP owner has already made the "first sale," so they presumably should not be harmed by a second sale. However, this is not always the case, and a "second sale" can cause harm to the IP owner through loss of sales or confusion for customers.
The first sale doctrine only applies to the resale of "genuine goods bearing a true mark." Distribution of a non-genuine product bearing a trademark still constitutes trademark infringement. A product is not considered genuine until its sale is authorized by the trademark owner. This means that the reseller must prove that the first sale (i.e., the sale to the reseller) was authorized and genuine. The reseller's use of the trademark must also not be likely to confuse the public. Courts have identified a four-prong test that a trademark owner must satisfy to overcome the first sale doctrine defence:
- The trademark owner maintains a substantial set of quality control standards and procedures for its products.
- The trademark owner consistently applies these standards and procedures.
- The reseller is not abiding by these standards.
- The sale of products that do not meet the trademark owner's standards is likely to confuse consumers and harm the trademark's value.
The first sale doctrine also applies when a trademarked product or component is incorporated into a new end product, as long as the seller adequately discloses to the public how the trademarked product was used or modified in the new product. This disclosure ensures that purchasing consumers are not confused about the source(s) of the product.
The first sale doctrine does not apply to the unauthorized resale of copyrighted materials in digital form, as digital media files are not distinct, tangible items that can change hands after a sale.
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First sale doctrine and digital goods
The first sale doctrine is a specific statutory restriction placed on the exclusive rights of copyright owners. It allows the purchaser of a legal copy of a copyrighted work to treat that copy in any way they desire, provided the copyright owner's exclusive rights are not infringed. This means the copy can be destroyed, sold, given away, or rented.
The first sale doctrine does not, however, permit the owner of a copyrighted work to reproduce, adapt, publish, or perform the work without the authorization of the author. The doctrine only applies to the owner of the work, not to someone who possesses but does not own it. For example, a store that purchases a lawfully-made copy of a movie can rent it out without paying royalties to the copyright owner. However, the person renting the movie cannot then rent it out to someone else.
The first sale doctrine has been a point of confusion in criminal copyright prosecutions, with several cases suggesting that the copyrighted work in question was not the subject of a first sale. The doctrine also does not protect a defendant who makes unauthorized reproductions of a copyrighted work.
In the digital age, the first sale doctrine becomes more complex. Digital copies can be reproduced and disseminated flawlessly and effortlessly, which affects the market for the original to a greater degree than physical copies. The reproduction right is not governed by the first sale doctrine, and digital technology increases the availability of copyrighted material, reducing the need for a first sale defence.
Courts have held that copying software from a storage medium to hardware constitutes making a copy, and without the copyright owner's permission, this is infringement. This means that copyright holders can limit the reproduction right to the original owner of the digital copy and effectively bar the sale of a legally loaded device.
In the case of UsedSoft v Oracle, the Court of Justice of the European Union ruled that the sale of a software product, either through physical or digital means, constituted a transfer of ownership, and the first sale doctrine applied. This ruling breaks the "licensed, not sold" legal theory. The Court of Justice of the European Union has also ruled that it is permissible to resell software licenses, even if the digital good has been downloaded directly from the internet.
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First sale doctrine and libraries
The first sale doctrine in copyright law gives the owners of copyrighted works the right to sell, lend, or share their copies without having to obtain permission or pay fees. This doctrine is particularly relevant to libraries, as it allows them to lend books and other materials to the public without legal hurdles.
The first sale doctrine, which stems from a 1908 Supreme Court case, Bobbs-Merrill, allows the owner of a particular lawful copy of a copyrighted work to resell, rent, lend, or give away that copy without the copyright owner's permission. This has been the basis for the legality of library lending, which has been in existence for over a hundred years. The doctrine applies to the distribution right but not the reproduction right, meaning that libraries can lend physical copies of books without infringing on the copyright owner's rights.
However, the shift to digital dissemination has created challenges for libraries. The first sale doctrine does not neatly fit transfers of digital works because an actual transfer of ownership does not occur. Instead, the recipient receives a new copy of the work, while the sender retains the original copy. This issue has played out in cases involving online marketplaces for pre-owned digital music and e-books. Because the first sale doctrine does not apply to electronic books, libraries cannot freely lend e-books indefinitely after purchase.
Additionally, e-book publishers have placed restrictions on the number of times an e-book can circulate and the amount of time a book can be in a collection before a library's license expires. These restrictions have raised questions about whether the first-sale doctrine should be retooled to reflect the realities of the digital age. While physical books degrade over time, digital information may not, and digital formats can be reproduced and disseminated worldwide without much difficulty.
Despite these challenges, libraries are exempt from certain restrictions under the first sale doctrine. For example, libraries and educational institutions may rent or loan musical sound recordings under Section 109(b) of the Copyright Act. Furthermore, the first sale doctrine helps keep physical book prices low for libraries and their patrons, ensuring that libraries can continue to provide free communal access to books.
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Frequently asked questions
The first sale doctrine is a limitation to copyright law that allows the purchaser of a legal copy of a copyrighted work to treat that copy in any way they desire, as long as the copyright owner's exclusive rights are not infringed.
A store purchasing movie disks and renting them out without paying royalties to the copyright owner. Another example is the resale of books, CDs, DVDs, and other tangible works that have been purchased.
The first sale doctrine does not apply to digital transmissions or reproductions. It also does not apply to licensed works, as a license does not transfer ownership rights.
The first sale doctrine was first recognized by the Supreme Court of the United States in 1908 in the case of Bobbs-Merrill Co. v. Straus. It was subsequently codified in the Copyright Act of 1909.
