Analysis Of Copyright Misuse In The Field Of Parallel Imports

This paper aims to discuss one type of copyright misuse in the field of parallel imports, Right-holders can stop the importation and distribution of grey market goods through copyright law. Based on the percentage of the copyrighted item over the grey market goods, there can distinguish two types of grey market goods. Type one goods are grey market goods that they themselves are copyrightable while Type two goods are grey market goods that they themselves are not copyrightable per se, and copyrightable items are only accessories. Scholars worldwide have already done abundant research upon to what extent can copyright owners stop importation and distribution of grey market goods; yet they did not differentiate Type one goods and Type two goods. For Type one goods, the current study can directly apply. For Type two goods, copyright owners’act trying to stop importation and distribution of the grey market goods through the copyrighted accessories attached is misusing their copyright. To try to illustrate this type of copyright misuse, this paper tries to introduce the issue through presenting two Supreme Court cases trialed respectively by the United States and Canada. The cases are similar in terms that they both involve a situation where the copyright owner tried to stop the distribution of grey market goods through copyrighted labels attached. Yet similar cases reached different outcome. To further clarify the background for discussion, this paper adopts a systematic approach to draw distinction between trademark law and copyright law when right-holders can adopt both of them to fight against grey market goods; then this paper goes deeper to analyze the factors that would influence the legitimacy of copyright law to fight against grey market goods; at the end of this part, this paper shows that it is for national trade policy to decide to what extent can copyright owner to fight against grey market goods. For Type two goods, this paper then turns to overseas legislations and practices for reference. Australia adopts a cost-benefit analysis before deciding to end the practices that enable copyright owner to stop importation and distribution of grey market goods through attached copyrightable accessories. Canada reasons over the legislative purpose and concludes that allowing copyright owner to stop importation and distribution of grey market goods through attached copyrightable accessories goes against the legislative purpose and therefore should not be allowed. America allows such practice; yet either through statutory interpretation or through copyright misuse mechanism, such practice shall be banned in America. This paper goes to present the current situation of the issue in China and reasons what it should be like. In the end, this paper proposes a systematic legislative plan in response to the reality that copyright owner uses copyright law to fight against grey market goods.