Issuing Copies and First Sale

In one line

The owner controls the first putting of each copy into circulation and nothing after it, so a book, once sold, may be resold, lent or given away.

In the wording a student can write in an exam: by section 14(a)(ii) of the Copyright Act, 1957 the owner of a literary, dramatic or musical work has the exclusive right to issue copies of the work to the public not being copies already in circulation, and by the Explanation to section 14 a copy which has been sold once is deemed to be a copy already in circulation.

Why the law has this at all

Because a right that followed every copy for ever would make ownership of a book meaningless. A second-hand market, a library, a gift and a resale would all need permission.

So the law lets the owner control the first release and then lets go. That is the doctrine of exhaustion, or first sale, and every copyright system has some version of it.

The treaty position is deliberately open. WIPO Copyright Treaty article 6(2) says that nothing in the Treaty affects the freedom of Contracting Parties to determine the conditions, if any, under which exhaustion applies after the first sale with the author's authorisation. So each country decides, and the Indian answer is the Explanation to section 14.

The provisions

Section 14(a)(ii). "To issue copies of the work to the public not being copies already in circulation."

Section 14(c)(iii) gives the same right for an artistic work.

The Explanation to section 14. "For the purposes of this section, a copy which has been sold once shall be deemed to be a copy already in circulation."

And section 51(b) gives the secondary infringement provisions, of which sub-clause (iv), importation of infringing copies, is the one that makes the exhaustion question sharp.

Broken down

"Issue copies to the public". The act is putting copies into public circulation, which ordinarily means selling or otherwise distributing them.

"Not being copies already in circulation". The right does not reach a copy that is already out. So the second sale of a particular copy is not an issue of that copy to the public.

"A copy which has been sold once". The Explanation fixes the trigger. It is a sale, not a gift, not a licence and not a rental.

Notice what the Explanation does not say. It does not say where the sale must have taken place. That silence is the whole of the parallel imports debate: is a copy lawfully sold in Singapore a copy already in circulation for Indian purposes? [Parallel Imports and Exhaustion] takes it up, and the Delhi High Court's decisions in Penguin Books Ltd. v. India Book Distributors, AIR 1985 Del 29, and John Wiley & Sons Inc. v. Prabhat Chander Kumar Jain, decided on 17 May 2010, are the Indian material.