Library Groups: Copyright Case May Threaten Library Lending
By David Rapp Jul 9, 2010Why is the Library Copyright Alliance (LCA)--a group made up of the American Library Association (ALA), the Association of College & Research Libraries (ACRL), and the Association of Research Libraries (ARL)--interested in a legal battle between watch manufacturer Omega and big-box retailer Costco?
Because a pending Supreme Court case may threaten the section of the Copyright Act that makes library lending possible.
First-sale under scrutiny
The alliance filed an amicus curiae ("friend of the court") brief [PDF] in the case, which will be heard by the U.S. Supreme Court in October. The Court's decision in the case could adversely affect the "first-sale doctrine," spelled out in Section 109(a) of the Copyright Act, which allows libraries to freely lend copies of books it has bought.
In the case, Omega claimed that Costco had infringed Omega's copyrights by importing Omega watches from other countries, instead of paying higher prices from a domestic distributor, and then reselling them in the United States. Costco claimed that it should be able to sell the watches under the first-sale doctrine.
The Ninth Circuit Court of Appeals ruled in 2008 that the first-sale doctrine applied only to items legally made in the United States.
The decision could change the nature of the first-sale doctrine, and lead to an interpretation that libraries may not lend out more than 200 million foreign-made materials in its collections.
The library exception
In its amicus brief, the LCA urged the Supreme Court to overrule the Ninth Circuit and apply the first-sale doctrine to "all copies manufactured with the lawful authorization of the holder of a work's U.S. copyright," which would include materials made in foreign countries.
"Unless the Supreme Court reverses the Ninth Circuit decision, the ability of libraries to lend a substantial part of their collection to the public could be jeopardized, and libraries could be inhibited from continuing their historic role," said Mary Ellen Davis, executive director of the ACRL, in a press release [PDF].
Should the Court decide to uphold the Ninth Circuit, however, the LCA suggested that exceptions for libraries be written into the decision. For example, an exception already exists in the Copyright Act that allows libraries to import books from foreign countries (Section 602(a)(3)(C)), and the Court could interpret that the exception includes lending as well.
Alternatively, the court could rule that lending is "fair use" under Section 107, the LCA stated in the brief.
