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US Publishers File Amicus Brief in Kirtsaeng v. Wiley

Core Tenets of US Copyright Act Grant Content-Creators the Right to Determine Distribution

The Association of American Publishers today filed an amicus brief in the case of Kirtsaeng v. Wiley in the United States Supreme Court, urging it to uphold lower appellate court rulings which held that the unauthorized importation of textbooks acquired outside the US and made under foreign law for foreign markets infringed the exclusive rights of publisher John Wiley & Sons Inc as the books’ US copyright owner.

The brief emphasizes that the case the Supreme Court is reviewing “is not about trade policy or consumer choices but about affirming the specific protections Congress built into the Copyright Act to protect the traditional abilities of authors, publishers and other copyright owners to control the works they release into the market, at home or abroad.”

AAP urges the Court to support the rulings in the case that reject the First Sale Doctrine as defense against infringement by the defendant for illegally taking advantage of lower prices charged in Asian markets for the international editions of textbooks to make a resale profit in the US in competition with Wiley’s domestic editions.

According to Allan Adler, Vice President for Legal and Government Affairs at the publishing industry’s national trade association, “Such protection necessarily includes the exclusive right to control distribution so that publishers do not have their domestic markets superseded by lower-priced copies created for and previously sold in foreign markets, then collected and resold en masse in the US.” Amendments to the Copyright Act of 1976 clarified the scope of that right, while limiting the application of the First Sale Doctrine and creating narrow exceptions for governmental, scholarly, educational and personal use of legitimate copies of previously-sold works purchased abroad.

In its filing, AAP noted Congress’s intent that US publishers and other copyright owners be able to develop domestic and international versions of their works and that the nature, elements and prices may differ as necessary to establish and maintain foreign markets for such works.

AAP also stated that fears voiced by libraries, museums and consumers about the alleged consequences of upholding the lower courts’ rulings and affirming the Copyright Act’s protections are groundless. “The law has supported such rulings for more than 30 years,” Adler added. “Throughout that time, publishers and other copyright-holders have never to sought to use it as a basis for any of the hypotheticals these opponents are predicting.”

The AAP amicus brief is posted here.

About AAP

The Association of American Publishers (AAP) represents about four hundred member organizations including major commercial, digital learning and education and professional publishers alongside independents, non-profits, university presses and scholarly societies. We represent the industry’s priorities on policy, legislative and regulatory issues regionally, nationally and worldwide. These include the protection of intellectual property rights and worldwide copyright enforcement, digital and new technology issues, funding for education and libraries, tax and trade, censorship and literacy. Find us online at www.publishers.org or on twitter at @AmericanPublish.