Shipping The Old Man Across the Sea

The Importation of Books in the Public Domain Abroad

When consumers purchase books through sites like Amazon, anonymous third-party sellers fill the orders. And increasingly, they do so using goods of unknown origin. Sometimes, the sellers send pirated counterfeits; other times, they ship authentic books produced for foreign markets, which are often much cheaper. Provisions of the Copyright Act bar both. Yet when the Supreme Court decided a Thai grad student could import foreign editions of English-language textbooks, it approved of the latter booksellers’ international arbitrage. First sale, the ability to resell a copyrighted work without asking the author for permission, trumps copyright’s importation restrictions. Counterfeits, however, can still be barred at the border. First sale only applies to copies “lawfully made.”

The Old Man and the Sea is still under copyright protection in America, but it lapsed into the public domain in Canada in 2011. Would a copy printed in another country—one where the work is in the public domain—be considered “lawful”? This Note argues that a copy of The Old Man printed in Canada could not be lawfully shipped across the border to American consumers. And as the first scholarly article to discuss importation of copyrighted works that are in the public domain in other countries, it strives to clarify how and when the Copyright Act deems a work as “lawfully made.”

The full text of this Note is available to download as a PDF.