This Essay on the distribution right considers the possibility and the merits of three options now widely discussed. These are: (a) ex-tending the reach of an old right, the right of reproduction, to include the currently debated "droit de destination," or (b) broadening the right of distribution in nations that have such a right by cutting back on the"first sale doctrine"' and other limitations on that right, and (c) giving authors broad control over use of their work. All of these approaches aim to make authors' rights more substantial and effective to achieve their purpose amid the erosions resulting from technological change. In pursuing this aim we must look carefully at the law and experience of today as evolved from the past. "Historic continuity with the past,"said Justice Holmes, "is not a duty, it is only a necessity." If we are to help develop the law wisely for authors, it also will be necessary to look at the problems, implications, and potentialities of the three options described in a number of specific areas of the arts.
Because United States copyright law, in addition to granting a re-production right, expressly provides for a right of distribution, I will begin my review of the United States law and its problems with an examination of that provision. So let me first briefly describe the terms of the United States distribution right and the limitations on it, including the first sale doctrine and other restrictions, as well as some of the existing avenues of expansion or avoidance. It seems best to start by examining the language of the general right currently in force and its history. Such a foundation will anchor and clarify any discussion of the merits and demerits of United States law and put suggestions for change in a sharper perspective.
John M. Kernochan,
The Distribution Right in the United States of America: Review and Reflections,
42 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol42/iss5/3