Copyright Exhaustion and Access to Books: Difficulties in Making the Case for an International Price Discrimination Strategy for Southern Africa

Abstract

In copyright law the choice of an exhaustion rule is crucial for access to protected works such as books. Policy makers across the globes have grappled with the question whether or not the copyright owner should control distribution beyond the first sale. At international level the doctrine of exhaustion also remains one of the most contentious and unresolved issues. This is mainly because the adoption of national exhaustion amounts to granting an importation right in which only the copyright owner or their licensed agent can legally import copies of a copyright product for distribution to the public. In effect, this amounts to a prohibition on parallel imports. This policy is extolled because it enables international companies to segment the global market and establish an international price discrimination strategy. On the other hand it is reviled because it tends to discourage competition from parallel imports. However, for many decades many developing countries especially in Africa, have suffered a critical dearth of books particularly in the higher education sector. In this thesis I argue that the doctrine of exhaustion has the potential to facilitate or inhibit the access to books in Southern Africa. I assert that although the doctrine of exhaustion can, at national level increase the availability and affordability of books, a national exhaustion rule is not very useful for the region which has a weak publishing infrastructure and creativity output. In sum I contend that parallel imports would provide an additional competition on the book market and lead to low prices of books. This would ultimately improve access to books in the region.

Keywords: MIPLC, Copyright Law, Doctrine of Exhaustion, First Sale, Price Discrimination, Access to books, Southern Africa