R. Anthony Reese

The First Sale Doctrine in the Era of Digital Networks

Copyright laws first-sale doctrine allows the owner of any particular lawful copy of a copyrighted work to resell, rent, lend, or give away that copy without the copyright owners permission. The article first considers the effects the first-sale doctrine has had as part of a copyright system in which many types of works are disseminated by the distribution to the public of tangible copies that can be retransferred by the copy owner to others who can just as easily use the copy to access the work. These effects have largely been to increase the affordability of copies of works (primarily by providing secondary sale, rental, and lending markets that can offer access at a lower price than that charged by the copyright owner for the purchase of a new copy) and the availability of works (by making it possible to obtain access to a work when it goes out of print or when a copyright owner withdraws or suppresses it and by increasing the likelihood that a copy or copies of the work will be preserved over time). Next, the article considers how a shift to digital dissemination - both via transmissions over digital networks and in the form of technologically protected digital copies - may well result in the existence of fewer freely transferable copies of copyrighted works that can be distributed without the copyright owners consent under the first-sale doctrine. The article then considers how this shift might affect the affordability and availability of copyrighted works. As to affordability, the article concludes that the shifts effect may be positive in some respects but may pose particular problems for library lending, perhaps the most affordable form of access. As to availability, the article concludes that the shift to digital dissemination may give copyright owners more complete control over access to copyrighted works and in particular may eliminate the preservation benefits of widespread distribution of copies that are legally and practically transferable under the first-sale doctrine. The article ends by suggesting some steps that might be taken, particularly with respect to fostering availability of copyrighted works, should the predicted effects of a shift to digital dissemination begin to materialize.

Copyrightable Subject Matter in the 'Next Great Copyright Act'

This Article, part of a symposium on the current calls for a general revision of U.S. copyright law, addresses how a revised copyright statute should establish what subject matter copyright protects. The 1976 Copyright Act currently protects a very broad range of subject matter, though its reach is not unlimited. This Article draws on experience under the 1909 and 1976 Copyright Acts to offer lessons for drafting a new statute’s subject matter provisions. Most importantly, Congress should expressly and exhaustively enumerate in the statute all of the categories of subject matter that it intends to protect. Congress should not delegate authority to courts or the Copyright Office to find other, unenumerated categories of subject matter copyrightable. In the past, Congress appears to have left open the possibility that subject matter not identified in the statute — such as, for example, perfume — might nevertheless be copyrightable. This Article argues that a revised copyright act should reject that approach.Congress should also statutorily define each enumerated category with sufficient breadth that rapid technological developments will not quickly make the definitions obsolete. Finally, Congress should make clear that compilations and derivative works are copyrightable only if they come within one of the statute’s expressly enumerated categories. Following these principles in revising the copyright statute would improve upon the 1976 Act’s provisions and would resolve uncertainties generated by the current statute.