Advanced Copyright Issues on the Internet - Fenwick & West LLP

Section 602(a) was obviously drafted with a model of physical copies in mind.“Importation” is not defined in the copyright statute, but the requirement that copies of a work be“acquired outside the United States” might suggest that “importation” means the movement ofphysical copies into the United States. 462 It is unclear how this right will be applied to Internettransmissions into the United States, with respect to which no physical copies in a traditionalsense are moved across national borders. Because the NII White Paper takes the position thatthe stream of data sent during a transmission does not constitute a “copy” of a copyrighted work,the NII White Paper concludes that the Section 602(a) importation right does not apply tonetwork transmissions into the United States, 463 and recommends that Section 602 be amendedto include importation by transmission of copies, as well as by carriage or shipping of them. 464However, because physical copies often end up on a computer in the United States as aresult of network transmissions into the United States, it is possible that the importation rightwill be construed analogously to the distribution right with respect to transmissions, especiallysince the importation right is defined in Section 602(a) in terms of the distribution right. Thus, ifa transmission is deemed to be within the distribution right, then it is possible that theimportation right will be construed to apply when transmissions of copies are made into theUnited States from abroad.In any event, the new right of communication to the public afforded under the WIPOtreaties, discussed in the next section, could help plug any hole that may exist in the traditionalimportation right, at least with respect to transmissions into the United States that qualify as“communications to the public,” if the such right is adopted in implementing legislation (asnoted in the next section, however, the DMCA does not contain an explicit right ofcommunication to the public).F. The New Right of Transmission and Access Under the WIPO TreatiesThe WIPO treaties each afford a broad new right of transmission and access to acopyrighted work. The right is denominated a “right of communication to the public” in theWIPO <strong>Copyright</strong> Treaty, and is denominated a “right of making available to the public” in theWIPO Performances and Phonograms Treaty. Despite the difference in denomination, the rightsappear to be very similar.462463464Lemley, supra note 6, at 564.NII White Paper at 68.Id. at 135.- 109 -