On 19 March 2013, the US Supreme Court delivered an important judgment about importation of books into the US.
The case, Kirstaeng v Wiley, concerned Kirstaeng’s sale in the US of books published by a Wiley subsidiary in Thailand. The books were published legitimately, but sold at a lower price than the US edition. Kirstaeng arranged for the books to be purchased in Thailand, and then imported them into the US and resold them. The case concerned Wiley’s rights in relation to the importation and the resale.
The Supreme Court, reversing the lower court decision, held that the importation and resale did not infringe Wiley’s copyright, because Wiley’s rights in relation to distribution of the books had been ‘exhausted’ with the initial sale in Thailand.
US publishers are reportedly considering seeking legislative change to address the implications of the decision, particularly in relation to segmentation of territorial markets.
Position in Australia
The decision concerned the interrelationship between three elements of US copyright law affecting physical items containing copyright content, such as printed books: rightsholders’ control over importation, rightsholders’ control over distribution, and the ‘exhaustion’ of the distribution right on ‘first sale’.
Australian copyright law works differently. Rightsholders have control over importation in some circumstances, but no copyright rights in relation to distribution of legitimately produced products (they do have rights in relation to distribution of unauthorised or pirate products). See further the Australian Copyright Council’s information sheet ‘Importing Copyright Items’, available here.
The US decision thus does not have any direct implications for the interpretation of the law in Australia.
The provisions in the Australian legislation relating to importation of books have been the subject of many reviews and inquiries since the 1980s. The most recent consideration was by the Book Industry Strategy Group (BISG), which recommended a voluntary undertaking by the Australian publishing industry to enable Australian booksellers to import books that are not published in Australia within 14 days of first publication overseas, and books that the publisher cannot supply within 14 days (see BISG report, recommendation 4).
Implications for digital files
The decision relates to physical products rather than digital files. There has, however, been some commentary about digital files: see for example here and here.
Commentary on the case
Recent commentary on the case includes:
- BREAKING NEWS! US Supreme Court decides Kirtsaeng (IPKat)
- Kagan Concurrence in Kirtsaeng Points Way Forward (CopyHype)
- Supreme Court says copyright law does not protect publishers in discount re-sales (Washington Post)
- SCOTUS in Kirtsaeng: First sale doctrine applies to copies made overseas (Daniel Gervais)
