Tuesday, 21 February 2012
Those following the progress of the Trans Pacific Partnership Agreement (also referred to in previous posts) and its impact upon international copyright dealings will be interested to read John Mitchell's fascinating piece on the TPP's possible impact on US price competition for certain copyright works offered for sale in the USA.
US readers will know that their s 109 begins......(a) Notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.
In Mitchell's post entitled "Trans Pacific Partnership Proposes Copyright Suppression of Price Competition" we see that the February 10th drafting states:
Section 4.2 provides:
“Each Party shall provide to authors, performers, and producers of phonograms the right to authorize or prohibit the importation into that Party’s territory of copies of the work, performance, or phonogram made without authorization, or made outside that Party’s territory with the authorization of the author, performer, or producer of the phonogram. [FN 11]“
“FN 11: With respect to copies of works and phonograms that have been placed on the market by the relevant right holder, the obligations described in Article [4.2] apply only to books, journals, sheet music, sound recordings, computer programs, and audio and visual works (i.e., categories of products in which the value of the copyrighted material represents substantially all of the value of the product). Notwithstanding the foregoing, each Party may provide the protection described in Article [4.2] to a broader range of goods.”
Mitchell argues that if the draft wording remains as it currently stands Congress will be obliged to amend s 109 of the US Act to apply to copies made in the US and authorised by the US copyright holder - the effect being that retailers would be required to secure from the US copyright owner a licence to sell products embodying copyright works even if those products were lawfully made abroad and imported into the USA!