The first-sale doctrine : parallel importation and beyond

Karjiker, Sadulla (2015-08)

CITATION: Karjiker, S. 2015.The first-sale doctrine: Parallel importation and beyond - research. Stellenbosch Law Review = Stellenbosch Regstydskrif 26(3):633-661.

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In 2013, the United States (“US”) Supreme Court gave its judgment in Kirtsaeng v John Wiley & Sons Inc, which appeared to fundamentally change the US’ position in relation to copyright law and parallel importation. The aforementioned judgment serves as an ideal opportunity to reflect on the corresponding legal position in South Africa. As will be illustrated, not only is the South African position very different from that which now exists in the US, but it is striking how different the US legal analysis is from that under South African law. This article will use the Kirtsaeng case to highlight the shortcomings in our current approach to copyright law and parallel importation, and the need to re-evaluate our legal position. Consideration of the legal position relating to parallel importation is not an esoteric, academic indulgence. The law in this area helps to determine the type of market which may exist for a particular product, and could affect consumer welfare. This article will illustrate that our approach to parallel importation is a rather narrow, literal one – based on questionable authority. It is an approach, which fails to properly consider the appropriate domain of copyright law, and fails to have regard to its purpose. What we require is a more far-reaching analysis of parallel importation, based on principles, and the effects on consumer welfare, which will provide a proper basis for future challenges that will be posed in this field by developments such as the emergence of digital copyright works.

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