The question the U.S. Supreme Court addressed in Kirtsaeng v. John Wiley & Sons, Inc., is whether copies that were published abroad and distributed abroad by an American copyright owner are copies that are lawfully made under the U.S. Copyright Act. If so, Kirtsaeng, the alleged infringer, could lawfully buy copies published and distributed abroad, then sell them in the U.S. without permission from the copyright owner. If not, then Kirtsaeng was a copyright infringer.
Supap Kirtsaeng, a Thai citizen studying in the U.S., bought foreign edition English language textbooks published abroad by John Wiley’s wholly owned foreign subsidiary for foreign markets. He then imported and sold those textbooks in the U.S. for a profit. Wiley sued Kirtsaeng for copyright infringement, due to Kirtsaeng’s unauthorized importation of the text books. At issue was the interplay between 17 U.S.C. §106(3) granting the copyright owner the exclusive right to distribute copies, §109(a) limiting the copyright owner’s exclusive right to distribute copies with the first sale doctrine and §602 deeming importation of copies without the consent of the copyright owner an infringement under §106. Ultimately, the case came down to whether the language of §109(a) places a geographic restriction on the scope of the first sale doctrine. The U.S. Supreme Court ruled that there is no geographical restriction and that Kirtsaeng did not infringe Wiley’s copyrights by selling books in the U.S. that were published abroad by Wiley.
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National Football Scouting sued sports writer Rob Rang and Sports Xchange for copyright infringement and trade secret misappropriation for disclosing National Football Scouting’s Player Grades for eighteen college players. The complaint in this case is described in my post Football Scouting Organization Files Suit for Copyright Infringement and Trade Secret Misappropriation Over Leaked Scouting Reports.
Both Rang and National filed summary judgment motions in this case. Rang argued that the Player Grades are not copyrightable, that Rang’s use of the Player Grades was fair use and that the Player Grades are not trade secrets. National argued the complete opposite. The district court ruled that National’s Player Grades are copyrightable, that Rang’s use of the Player Grades was fair use and that the Player Grades are information that can be protected by trade secret law, but that factual disputes precluded deciding the issue on summary judgment. The district court dismissed National’s copyright infringement claim. The trade secret claim remains for trial.
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The U.S. Supreme Court issued its ruling in Golan v. Holder (pdf) this week. This case concerns the extent of copyright protection granted to foreign works by U.S. law. The Berne Convention is the major treaty governing international copyright protection. Under the Berne Convention, foreign works receive the same copyright protection as works created by the nationals of a country receive. Although the Berne Convention became effective in 1886, the U.S. did not join the Convention until 1989 and did not pass copyright laws bringing the U.S. into full compliance with the Berne Convention until 1994.
Historically, the U.S. has offered less copyright protection to foreign works than to works created by U.S. authors. Before 1994, there were many foreign works that were protected by copyright in their countries of origin, but received no copyright protection under U.S. law and were in the public domain in this country. As part of the effort to bring the U.S. into compliance with the Berne Convention, Congress amended 17 U.S.C. §104A, Copyright in Restored Works. Section 104A gives foreign works the same term of copyright protection applicable to U.S. works. Since many foreign works were in the public domain in the U.S. while they still received copyright protection in their countries of origin, §104A also provides for the restoration of the U.S. copyrights in those works, with certain exceptions, effectively removing those foreign works from the U.S. public domain.
The issue faced by the U.S. Supreme Court in Golan v. Holder is whether Congress exceeded its authority under the Constitution’s Copyright and Patent Clause and the First Amendment by restoring U.S. copyright protection to foreign works.
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