[Random-bits] End of 1st sale doctrine and Article 4 of Hague Convention

[James Love]

My comment below is just the tip of the iceberg on this.  Article 4 of
the Hague convention will be the end of the current first sale doctrine
in the US on video rentals, and is likely to lead to greater pressure
for library lending fees and for vidoe rental royalties, practices which
exist in some foreign countries right now.   Jamie

-------- Original Message --------
Subject: End of 1st sale doctrine and Article 4 of Hague Convention
Date: Thu, 24 May 2001 15:49:13 -0700
From: James Love <love@cptech.org>
Organization: http://www.cptech.org
To: cni-copyright <cni-copyright@cni.org>

Article 4 of the proposed Hague Convention concerns choice of court
clauses in contracts.  In the present language of Article 4, these
clauses are always to be honored, even in non negotiated contracts, for
all "business to business" contracts.  Under the current language of
Article 7 of the Convention, all libraries, universities, and non-profit
organizations are considered businesses, and the choice of court clause
is always enforceable.  This is also true for a small business or for
individual when the contract does not involve household use.  

This would appear to greatly undermine the importance of national
practices regarding the 1st sale doctrine, since a publisher could
simply specific in a contract, for a book, a video, software, etc, that
a foreign court would have jurisdiction, including courts that would not
uphold the first sale doctrine.  Despite the far reaching impact of this
provision, so far no library has expressed any written concern over this
provision in the Hague convention, which enters a diplomatic conference
on June 6.   I think this should be remedied, as it is difficult for our
group to creditably represent the interests of thousands of libraries.

  Jamie



Article 4     Choice of court

1. If the parties have agreed that a court or courts of a Contracting
State shall have jurisdiction to settle any dispute which has arisen or
may arise in connection with a particular legal relationship, that court
or those courts shall have jurisdiction, and that jurisdiction shall be
exclusive unless the parties have agreed otherwise. Where an agreement
having exclusive effect designates a court or courts of a
non-Contracting State, courts in Contracting States shall decline
jurisdiction or suspend proceedings unless the court or courts chosen
have themselves declined jurisdiction.

2. An agreement within the meaning of paragraph 1 shall be valid as to
form, if it was entered into or confirmed -

     a) in writing;

     b) by any other means of communication which renders information
accessible so as to be usable for subsequent reference;

     c) in accordance with a usage which is regularly observed by the
parties;

     d) in accordance with a usage of which the parties were or ought to
have been aware and which is regularly observed by parties to contracts
of the same nature in the particular trade or commerce concerned.

3. Agreements conferring jurisdiction and similar clauses in trust
instruments shall be without effect if they conflict with the provisions
of Article 7, 8 or 12.

-- 
James Love
Consumer Project on Technology
P.O. Box 19367, Washington, DC 20036
http://www.cptech.org
love@cptech.org
1.202.387.8030 fax 1.202.234.5176