The Marrakesh Treaty and the Targeted Uses of Copyright Exhaustion

Abstract

This chapter analyzes whether the exhaustion principle might be relevant to the implementation of the 2013 Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (the "Marrakesh Treaty"). The analysis of the potential role for the exhaustion principle in the implementation of the Treaty provides an opportunity to explore three matters that are not specific to the implementation of the Treaty. The first matter is a seldom-mentioned (and apparently never in-depth investigated) relationship between the exhaustion principle and other limitations and exceptions to copyright, including the relationship between the first sale doctrine and section 121 of the U.S. Copyright Act. The second matter is the application of the three-step test to limitations and exceptions that concern the distribution right in circumstances when distribution is expected to occur abroad, outside the country that is implementing the limitations or exceptions. Finally, the third matter is the "targeted uses" of the exhaustion principle – instances in which the exhaustion principle, also known as the “first sale doctrine” in the United States, does not apply generally, as we would typically expect, but applies selectively because it is tailored to achieve particular goals.

Keywords: Marrakesh Treaty, copyright, visually impaired, blind, first sale, limitations, exceptions, international, cross-border, transnational, UsedSoft, software, developing countries, international cooperation