A Second Look at the Right of First Publication

Abstract

Historically, the right of first publication provided the copyright owner with a virtually exclusive right of market entry. Courts and scholars have traditionally found this right exhausted for all markets upon entry into any single market. A reexamination of the history and development of the right indicates instead that it often protected successive market entries.

This article argues for a limited right of first online publication. Like the traditional right of first publication, it would generally trump a fair use defense of the unauthorized dissemination of a work online, even if that work had been previously published in print. The established publication inquiry considers the scope of prior publications, and the owner’s contractual relationships, to determine whether the right of first publication has been exhausted. Networks theory sheds light on the difference in scope between print and online publication. The dissemination of print books occurs in a conserved spread: while the physical embodiment of the content moves from point to point, the total number of copies in the network remains stable allowing the owner to correctly assess the risks inherent with market entry. Online dissemination occurs as nonconserved spread: any holder of a digital copy can instantly disseminate it to any point online while retaining the original. The differences are significant enough that print dissemination should not be held to exhaust or abandon the right of first online dissemination. Courts are often called on to apportion rights between initial copyright owners and transferees when innovations open unforeseen markets for works of authorship. An examination of these transactions indicates that the right to enter the new market generally remains with the prior owner. This tendency supports the argument that disseminating a work in a restricted format does not exhaust the right of first publication in new markets.

Copyright law will need to adapt to multiple format changes over the effective life of a copyrighted work. Recognizing the right of first publication as a rule governing transitions into new formats will provide courts, copyright owners, and technology innovators with firm rules allowing the copyright owner to decide if and when to adopt a new technology. Transitional technology will likely emerge with increasing frequency in coming years. Now is the time to think seriously about implications for owners with the long view. A right of first online publication would preserve space for the inter-format fair use that is an important element of the bargain between copyright owners and the society, while protecting the ability of owners to consider the right time to make intra-format shifts and enter new and riskier markets during the protected life of the work.

Keywords: Intellectual Property, Copyright, Network Theory