Advanced Copyright Issues on the Internet - Fenwick & West LLP

crucial question whether the MAI approach will be internationalized. In any event, these twotreaties would strengthen copyright holders’ rights of “distribution” and would create new rightsof “making available to the public” a copyrighted work, both of which are implicated bytransmissions through the Internet nearly as broadly as the right of reproduction.The ubiquitous nature of “copying” in the course of physical transmission gives thecopyright owner potentially very strong rights with respect to the movement of copyrightedmaterial through the Internet, and has moved copyright to the center of attention as a form ofintellectual property on the Internet. If the law categorizes all interim and received transmissionsas “copies” for copyright law purposes, or treats all such transmissions as falling within the rightof distribution of the copyright owner, then activities that have been permissible with respect totraditional tangible copies of works, such as browsing and transfer, may now fall within thecontrol of the copyright holder.This paper discusses the multitude of areas in which copyright issues arise in an onlinecontext. Although the issues will, for simplicity of reference, be discussed in the context of theInternet, the analysis applies to any form of online usage of copyrighted works. Part II of thispaper discusses the various copyright rights that may be implicated by transmissions and use ofworks on the Internet, including new rights and remedies, as well as certain limitations onliability for online service providers afforded under federal statutes. Part III then analyzes theapplication of those rights to various activities on the Internet, such as browsing, caching,operation of an online service or bulletin board, linking to other sites, creation of derivativeworks, and resale or subsequent transfer of works downloaded from the Internet. Part III alsoanalyzes the application of the fair use doctrine and the implied license doctrine to variousInternet activities. Because the law is still developing with respect to many of these issues, agreat deal of uncertainty is likely to exist as the issues are worked out over time through thecourts and the various relevant legislative bodies and industry organizations.II.RIGHTS IMPLICATED BY TRANSMISSION AND USEOF WORKS ON THE INTERNETThis Part discusses the various rights of the copyright holder – the right of reproduction,the right of public performance, the right of public display, the right of public distribution, theright of importation, and the new rights of transmission and access – that are implicated by thetransmission and use of works on the Internet.A. The Right of ReproductionThe single most important copyright right implicated by the transmission and use ofworks on the Internet is the right of reproduction. As elaborated below, if the law categorizes allinterim and received transmissions as “copies” for copyright law purposes, then a broad range of4World Intellectual Property Organization Performances and Phonograms Treaty, Apr. 12, 1997, S. Treaty Doc.No. 105-17 (1997).- 13 -