Advanced Copyright Issues on the Internet - Fenwick & West LLP

5. The Right of Distribution Under WIPO Implementing Legislation(a) United States LegislationThe DMCA does not contain any provisions that would modify the right of distributionas it exists under current United States law. Thus, the DMCA implicitly deems the current rightof public distribution to be equivalent to the Article 6 right.(b) The European <strong>Copyright</strong> DirectiveArticle 4(1) of the European <strong>Copyright</strong> Directive requires member states to “provide forauthors, in respect of the original of their works or of copies thereof, the exclusive right toauthorize or prohibit any form of distribution to the public by sale or otherwise.” Use of thephrase “any form” of distribution suggests that a broad right is intended, although, as in theUnited States, the right applies only with respect to the distribution of “copies.” 460 Consistentwith the Agreed Statement of the WIPO <strong>Copyright</strong> Treaty, the comments to Article 4(1) of theEuropean <strong>Copyright</strong> Directive recite that “the expressions ‘copies’ and ‘originals and copies,’being subject to the distribution right, refer exclusively to fixed copies that can be put intocirculation as tangible objects.” 461Thus, although use of the phrase “any form” of distribution might suggest that all onlinetransmissions of copyrighted works would fall within the distribution right of the European<strong>Copyright</strong> Directive, the comments limit the distribution right “to fixed copies that can be putinto circulation as tangible objects.” It seems that the drafters of the European <strong>Copyright</strong>Directive intended the right of communication to the public, rather than the right of distribution,to cover online transmissions of copyrighted works, for Recital (23) states that the right ofcommunication to the public “should be understood in a broad sense covering all communicationto the public not present at the place where the communication originates. This right shouldcover any such transmission or retransmission of a work to the public by wire or wireless means,including broadcasting. This right should not cover any other acts.”E. The Right of ImportationSection 602(a) of the copyright statute provides that “importation into the United States... of copies or phonorecords of a work that have been acquired outside the United States is aninfringement of the exclusive right to distribute copies ....” One purpose of Section 602(a) wasto allow a copyright owner to prevent distribution into the United States of copies of works that,if made in the United States, would have been infringing, but were made abroad outside thereach of United States copyright law.460461Art. 4(2) deals with exhaustion of the distribution right under the first sale doctrine, and will be discussed inSection III.F below.Commentary to Art. 4, 1.- 108 -