Advanced Copyright Issues on the Internet - Fenwick & West LLP

implementation legislation in the United States took a largely minimalist view of the changes toUnited States copyright law required to conform to the WIPO treaties. It is curious that all theimplementing legislation introduced in Congress implicitly took the position that U.S. lawalready contains most of the rights required under the WIPO treaties, in view of the fact that, asanalyzed below, much of the language describing mandatory copyright rights in the WIPOtreaties appears to go beyond the correlative rights in current United States law or to set up newrights entirely. The possibility that other countries would adopt legislation implementing theWIPO treaty rights in their seemingly broader form raises the prospect of varying scopes ofrights in different countries, a situation that the WIPO treaties were intended to avoid in the firstplace. 46 In contrast to the United States implementing legislation, the European Commission’s“European <strong>Copyright</strong> Directive on the Harmonization of Certain Aspects of <strong>Copyright</strong> andRelated Rights in the Information Society” 47 to update and harmonize member state copyrightlaws (which will be referred to herein as the “European <strong>Copyright</strong> Directive”) seems to take amore expansive view, although individual member states are free to interpret the extent to whichtheir own copyright laws already conform to the dictates of the European <strong>Copyright</strong> Directive inadopting legislation in response to it. 48 The WIPO implementation legislation in the UnitedStates and the European <strong>Copyright</strong> Directive will be discussed at length throughout this paper asthey relate to the various issues treated herein.464748WIPO <strong>Copyright</strong> Treaty, Preamble, at 4; WIPO Performances and Phonograms Treaty, Preamble, at 22.The text of the European <strong>Copyright</strong> Directive may be found athttp://europa.eu.int/servlet/portail/RenderServlet?search=DocNumber&lg=en&nb_docs=25&domain=Legislation&coll=&in_force=NO&an_doc=2001&nu_doc=29&type_doc=Directive (available as of January 1, 2002).The European <strong>Copyright</strong> Directive was first circulated for comments among European legal experts. It wasthen officially published at the end of 1997 for a more public debate of its provisions. The EuropeanParliament approved a final draft of the Directive on February 14, 2001. The European Commission, actingthrough the European Union ministers, accepted the final draft of the Directive on April 9, 2001.- 22 -