In Kirtsaeng v. John Wiley & Sons, Inc, the US Supreme Court decided on 19 March 2013 that the "first sale" doctrine applies to copies of a copyrighted work lawfully made abroad. Consequently, an American publisher in the future may be unable to prevent the unauthorized importation into the United States of low cost editions of its textbooks produced for developing markets.
IPA considers that this decision threatens low cost textbooks, which are critically important to students in developing countries.
Commenting on the US Supreme Court ruling in Kirtsaeng v John Wiley & Sons Inc, the IPA’s Secretary General Jens Bammel said: “Allowing the domestic importation of lowcost editions of textbooks from developing markets is a direct threat to low-cost editions themselves. Students in developing countries will, literally, pay the price for this decision. One of the best developments for students in recent years is differential pricing: the ability for publishers to set their prices to market and thus put many international textbooks within reach of students in poorer countries. It is unfortunate that these exciting new business models are now being threatened by such a decision”.
Jens Bammel added: “We are heartened that not all judges chose to ignore how global publishers reach and support education in poor countries. As Justice Ginsburg noted in her dissenting opinion: “Because economic conditions and demand for particular goods vary across the globe, copyright owners have a financial incentive to charge different prices for copies their works in different geographic regions. Their ability to engage in such price discrimination, however, is undermined if arbitrageurs are permitted to import copies from low-price regions and sell them in high-price regions”. In the longer term, we hope that this view will prevail”.
More about the Case
In order to finance his studies in the United States, a Thai national, Kirtsaeng, resold in the US textbooks purchased by his family in Thai bookshops and manufactured by Wiley’s Asian subsidiary. Overall, Kirtsaeng sold several hundred thousand dollars’ worth of textbooks imported in this way, and made a net profit in the range of USD 100,000. When Wiley found out about his activities, Kirtsaeng was sued for copyright infringement. Wiley alleged that Kirtsaeng violated § 602(a)(1) of the US Copyright Act, which prohibits the importation of foreign-made works or goods without the copyright owner's authority. Kirtsaeng claimed that, according to the first-sale doctrine codified in § 109(a), he was permitted to resell Wiley’s textbooks in the United States without Wiley’s permission because the doctrine states that a copyright owner loses exclusive rights after the first sale of the work. Until the Supreme Court ruling, lower US courts had found Kirtsaeng guilty and imposed statutory damages of USD 600,000.