The Right of Public Distribution

• Author: Robert A. Gorman
• Profession: University of Virginia School of Law
• Pages: 79

Section 106(3) of the Copyright Act gives the copyright owner the exclusive right "to distribute copies or phonorecords of the copyrighted worto the public by sale or other transfer of ownership, or by rental, lease, olending." Thus, if A owns the copyright in a novel, and B prints unauthorized copies and supplies them to who sells them to the public, both and are copyright infringers-B violates section 106(1) and violate section 106(3). C will be liable, under the general rule of copyright infringement, regardless whether he sells the books in the belief B watheir lawful author.

First-sale doctrine

If read literally, section 106(3) would make it an infringement for a boodealer to sell used books or for any private person to lend a book tfriends. This anomaly is quickly dispelled by virtue of section 109(a)wh1ic..1 proViY.e:

Notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of thcopyright owner, to sell or otherwise dispose of the possession of thacopy or phonorecord.

This provision articulates what has been a fundamental part of oucopyright jurisprudence for decades: the "first-sale doctrine." The exclusive right to distribute the copyrighted work to the public thus embraceonly the first sale, and purchasers of copies or phonorecords are free ttransfer them to others with or without charge. The first sale "exhausts"

the right of the copyright owner under section 106(3), and he or she musexact whatever royalty can be negotiated from the initial publisher-distributor, knowing that that will have to provide recompense for all subsequent transfers as well.

Thus it is lawful, for example, for a person to purchase second-hancopies of copyrighted works, to remove the covers or to bind them inew covers, and to resell them to the public.[128].

If, however, the resellegoes a step farther and makes some alteration in or compilation of thlawfully purchased works, he may be found liable for creating an unlawful derivative work even if not for unlawful public distribution. A courso held when the defendant purchased old copies of National GeographiMagazine, tore out articles, and bound together for sale articles relating ta common subject matter.[129].

Another court found infringement when thdefendant tore out color photographs from lawfully purchased magazines, glued them to a black border and then...