07.11.89
The Publishers Association
PARALLEL IMPORTS: THE CASE FOR CONTROL
1.
is,
occurs where it is
ΠΟΣΕ
Parallel imports. "Parallel importation" possible to import goods, usually goods protected by copyrights, patents or trade marks, into a territory from
than one manufacturer or supplier. This
of course, usually unobjectionable where the goods in question are different and competing products not protected by intellectual or industrial property, e.g. basic commodities, or different brands of different goods. But where the goods are competing versions of an identical product, e.g. editions of the same book, or copies of the same recordings published or produced by different manufacturers different territories, and protected by copyright, different considerations may apply.
for
2. Logic of different exclusive territorial licences For goods protected by intellectual property laws, it is normal for the owner of the right to be able to exploit the right separately in different jurisdictions, and to divide and exploit the right in other ways, e.g. as to the period of a licence. This system, supported by international law and established international trading practice, is designed to stimulate the availability of the goods by encouraging the rights owner to put them on the market, so providing benefits to users and consumers.
3.
Licensed and unlicensed copies. Copyright goods which may be the subject of parallel importation may be of two kinds: (i) goods produced elsewhere for sale in other territories with the licence of the rights owner, and (ii) goods produced elsewhere without the licence of the rights owner, for example through piratical reproduction, or where there is no copyright legislation (either at all or for the goods in question), or where copyright has expired because of a shorter term than is required by the Berne Convention. It is assumed that there would be no intention to permit parallel importation of copies sold in the circumstances set out in (ii), which would fundamentally undermine the exclusive publishing right (and see para 6. below) [cf Volvo V Veng (ECJ 288/87). This submission is therefore solely concerned with the situation described in (i), the ability of the copyright owner to control the importation of copies sold under his licence elsewhere, but not licensed for sale in Hong Kong.
4.
'Exhaustion of right' of licensed copies There are occasions when the law does hold that the rights owner may not be able to control the subsequent disposal of copies made under his licence, e.g. where he has made a first sale' of such copies. However, except in certain very limited circumstances, such 'exhaustion of rights' applies only within a jurisdiction and not between jurisdictions, so that the exclusive right in separate jurisdictions is maintained. See for example EMI v CBS, (ECJ 51/75) (also Polydor v Harlequin (ECJ 270/80) or Hearst v Stark (639 F.Supp. 970 [N.D. Cal. 1986]) (also CBS V Scorpio (569 F.Supp. 47, 49 [E.D. Pa. 1983]). Two recent exceptions to this rule in the US concerned only where the goods had been manufactured by the rights owner ΟΙ
cases