International media

Language labs may face new problems in buying, using, and lending media items produced outside the U.S.

Laws respecting copyright vary a good deal from one country to another. In some cases, what is regarded in the United States as piracy is legal elsewhere; in others, the law gives the owners of a legal copy of a film fewer rights than in the U.S. Various treaties provide for the synchronization of legal provisions among various countries, but this process is ongoing.

For example: in Canada, Public Performance Rights must be purchased to show a film in the classroom; a central clearinghouse assures that it is easy for schools to obtain these rights, but the payments must be factored into the cost of teaching a class. This contrasts with the right of teachers in the U.S. to display almost any type of media in face-to-face teaching. See this FAQ from Criterion Pictures, which manages licensing for many films in Canada. There is no corresponding page on the American version of the Criterion Pictures site.

Until recently free trade agreements ensured the right to purchase and use in accordance with American laws a copyrighted item originating in another country. Thus, for example, foreign books could be purchased by libraries and loaned to patrons, or purchased by American resellers and sold, according to the Doctrine of First Sale.

The primary barriers to American use of video produced abroad has traditionally been technological: first, the different video systems (PAL, NTSC, and at one time SECAM) used in different countries, which required different technology for playback; later, the DVD region coding, which American law protects from contravention.

However, a case brought to the Ninth Circuit Court in 2008, whose decision was confirmed by the Supreme Court in December 2010, raises a more serious barrier to the use of international copyright material. In Omega SA v Costco Wholesale Corp, the Omega watch company found a way to prevent Costco from selling its watches at a cut-rate price, by copyrighting in the U.S. a design engraved on the watches. They argued that the copyrighted design gave them the right to forbid resale of the watches without their approval. The trial court sided with Costco, but the Ninth Circuit Court of Appeals agreed that the Doctrine of First Sale did not protect copyrighted items manufactured outside the United States. The Supreme Court upheld this decision but split 4-4 (with Justice Kagan recusing herself); because of the split, the decision is considered valid only in the area served by the Ninth Circuit Court of Appeals.

It is possible, then, that media manufactured abroad--in particular, DVDs--may be accompanied by warnings that the item is for sale only in the country of origin, or that rights which would normally be attached to it in the U.S. are withheld by the copyright owners.

For international film-makers, the rights to U.S. distribution are a valuable property. However, demand for a U.S. version of a foreign film depends on knowledge about the film, which comes from theatrical showings, reviews, and, I think, a limited amount of semi-legal distribution: YouTube postings of excerpts, non-Region-1 copies purchased by educators and others in a position to make the film known, and so on. Putting a further obstacle in the way of this kind of limited distribution may not be in the interest of the rights-holders.

There is one likely exception: French rights holders who sell English-subtitled versions of their films to Quebecois distributors but who hope to negotiate a more remunerative contract with U.S. distributors. Such films are Region 1, and therefore completely compatible with American players (though the menus and scene options may be entirely in French). Moreover, they are particularly useful for language learners because they often have French subtitles as well as English. The rights holders can now forbid resale of these items in the United States.

Documented attempts to claim this type of right on DVDs: