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Ash
Ash, Solicitor
Category: Law
Satisfied Customers: 10916
Experience:  Solicitor with 5+ years experience
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Is it legal to sell used or unused promotional CDs or DVDs

Resolved Question:

Is it legal to sell used or unused promotional CD's or DVD's in the UK or to people outside the UK if sold online via ebay or any other online sales platform or physically at a carboot sale or direct in any other way to customers ? These discs were given away as newspaper "freebie" promo discs (some are also promos as pre release cds sent to radio stations prior to formal commercial release) including music albums and films and tv series - we have legally aquired a large volume of these when buying bulk loose commercially released discs which we already sell as used (cds, dvds, games ) - we have the opportunity to ongoingly buy large volumes of such discs and there will be a large percentage of these "newspaper promo discs" within each batch - so we are looking to ensure there are no legal constraints to the resale individually or in bulk of these newspaper discs.
As far as i am aware reselling a promo item given away by the rights holder (or having been contractually agreed between the rights holder and the newspaper regarding terms of manufacture and royalties - which were paid at point of manufacture ) - is acceptable and was legally clarified in usa in 2011 when a rights holder challenged a seller selling a promo cd from the rights holders band - legal outcome was seen as first doctrine of sale meant once given away the rights holder has no rights over the physical product so the person who has aquired it (and legally owns it ) can dispose of said item as they see fit including its resale. Ebay have stated that as long as we legally own the items (we have an invoice for the purchase of these) they can be listed on ebay.co.uk.
Many of these discs have "not for resale" printed on - again our understanding is that was to prevent primary sale of the discs away from the newspaper at point of original sale with the newspaper - but have nothing to do with future resale of the item ?

Many Thanks for your time.
Submitted: 3 years ago.
Category: Law
Expert:  Ash replied 3 years ago.

Alex Watts : Hello my name is XXXXX XXXXX I will help you with this. Please note that I am a working Solicitor and may be on and offline as I have to attend Court and meet with clients, even at weekends. As such you may not get an instant response when you reply, but rest assured I will be giving your question my immediate attention upon return You do not need to wait here as you will get an email when I reply.
Alex Watts : Has anyone contacted you about selling products on ebay please?
JACUSTOMER-f6lrsfbq- :

no one has contacted me - this is pre emptive as i have acess to very large volumes of these "newspaper promo" discs - we have not yet retailed any in any way.

JACUSTOMER-f6lrsfbq- :

i contacted ebay pro actively - they noted as long as i own the items and have the right to resale they can be listed for sale on ebay - primarily we need to know we have the right to resale these.....

Alex Watts :

Yes - these are listed all the time on Ebayt

Alex Watts :

Ebay

Alex Watts :

In fact you have many record collectors (and dealers) who sell huge volumes of these

Alex Watts :

So as long as they are not stolen then yes you can sell them

Alex Watts :

Can I clarify anything for you about this today please?

Customer:

was wanting more detailed legal grounding and information behind this rather than - yes they are listed all the time on ebay - we know that - we are asking for legal advice surrounding copyright and asssurance that resale of promo items like this in fact is legally sound under UK law so we are not faced with IP infringement notices and legalities. we had paid for high detail information but really havent had anything more than general info here..... We have access to millions of these discs so our concerns are valid.

Customer:

yes these discs are as i noted b4 paid for and invoiced.....

Alex Watts :

They can not stop you as this would be a civil matter.

Alex Watts :

It is only passing off if you are producing something that is similar

Alex Watts :

In this case it is not - it is a product which has been produced by the record company

Alex Watts :

Therefore when other people sell it to you, that person is waiving any right to it and to comply with it for promo use only.

Alex Watts :

When you sell it you have no licence or contract with the record company

Alex Watts :

Therefore they can not make you abide by any conditions etc.

Alex Watts :

As long as you are not in breach of copyright (which you are not) they can not stop you

Alex Watts :

It is a matter of contract between them and whoever they supplied the promo music to

Alex Watts :

Can I clarify anything else for you please?

Customer:

Thanks for that info --- i have waited til today as awaited response from IPO copyright office -- they have said that no copyright issues to complicate or prevent resale of these promo discs and i will be getting that in email documentation. Only question is therefore ---- We trade as a LTD company vat registered --- does this change anything as you noted that "they can not sop you as this would be a civil matter" ? Also would exporting these discs out of UK into europe or elsewhere worldwide raise any issues ? Should we value them on the export documents based on our cost price as effectively they have no face value ..... The BPI can be aggressive as they are looking after rights holders interests but it sounds like they have no legal grounding to act upon.... Presuming these aspects we will start to trade these. Thankyou for your enhanced response - i appreciate it.

Alex Watts :

The fact you are Limited does not change anything.

Alex Watts :

The fact you are Limited indeed protects the position should they decide for whatever reason to try and sue you.

Alex Watts :

But no, the fact you are Limited makes no difference

Alex Watts :

Can I clarify anything else?

Customer: Thanks
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