Advanced Copyright Issues on the Internet - Fenwick & West LLP

potentially site the infringement at the place of transmission, in addition to the pointof receipt of a transmitted work (under the reproduction right).Right of Authorization. It also affords the exclusive right of “authorizing” anycommunication to the public. No actual communications to the public are apparentlynecessary to infringe the right.Right of Access. The right of authorizing communications to the public explicitlyincludes “making available to the public” a work “in such a way that members of thepublic may access” the work “from a place and a time individually chosen by them”(a right of access). 466 This access right would seem to allow the copyright holder toremove an infringing posting of a work prior to any downloading of that work. Thisright may also expand potential liability beyond just posters or recipients ofinfringing material on the Internet to include OSPs and BBS operators, who could besaid to make a work available to the public in such a way that members of the publicmay access it.The Agreed Statement for Article 8, however, appears aimed at limiting the breadth ofthe net of potential liability that Article 8 might establish. The Agreed Statement provides: “Itis understood that the mere provision of physical facilities for enabling or making acommunication does not in itself amount to communication within the meaning of this Treaty orthe Berne Convention. It is further understood that nothing in Article 8 precludes a ContractingParty from applying Article 11bis(2).” It is unclear who the “mere” provider of “physicalfacilities” was meant to reference – only the provider of telecommunications lines (such asphone companies) through which a work is transmitted, or other service providers such as OSPsor BBS operators, who may provide “services” in addition to “facilities.”Another unclear point with respect to the scope of the right of communication to thepublic is who the “public” is. Neither the WIPO <strong>Copyright</strong> Treaty nor the European <strong>Copyright</strong>Directive provide any explanation of “to the public,” although the Commission in its 1997commentary to one of the earlier drafts of the Directive stated that “public” included “individualmembers of the public,” but went on to state that “the provision does not cover mere privatecommunications.” 467The right of transmission and access under Article 8 of the WIPO <strong>Copyright</strong> Treaty issimilar to (and potentially broader than) the amendment to U.S. copyright law proposed in theNII White Paper “to expressly recognize that copies or phonorecords of works can be distributedto the public by transmission, and that such transmissions fall within the exclusive distribution466467Although “public” is not defined in the WIPO <strong>Copyright</strong> Treaty, the reference in Article 10 to access bymembers of the public “from a place and at a time individually chosen by them” is very similar to the definitionof display or performance of a work “publicly” in Section 101 of the U.S. copyright statute, which applies“whether the members of the public capable of receiving the performance or display receive it in the same placeor in separate places and at the same time or at different times.”Harrington & Berking, supra note 179, at 4.- 111 -