Advanced Copyright Issues on the Internet - Fenwick & West LLP

(b) The WIPO <strong>Copyright</strong> TreatyArticle 7 of an earlier draft of the WIPO <strong>Copyright</strong> Treaty would apparently haveadopted the approach of MAI to the question of whether RAM copies fall within thereproduction right of the copyright holder. 49 The proposed Article 7(1) provided:(1) The exclusive right accorded to authors of literary and artistic works inArticle 9(1) of the Berne Convention of authorizing the reproduction of theirworks, in any manner or form, includes direct and indirect reproduction of theirworks, whether permanent or temporary.The reference to “temporary” reproductions would have seemed to cover copies in RAM.The reference to “indirect” reproductions, particularly when coupled with the inclusion of“temporary” reproductions, might have been broad enough to cover interim, partialreproductions in RAM in the course of transmission of a work through the Internet, as well ascomplete copies of a work made in RAM and/or on a hard disk at the receiving computer.49The WIPO <strong>Copyright</strong> Treaty contains a number of important provisions relevant to the Internet that are notdiscussed elsewhere in this paper. Article 2 codifies the idea/expression dichotomy of copyright law:“<strong>Copyright</strong> protection extends to expressions and not to ideas, procedures, methods of operation ormathematical concepts as such.” Article 4 expressly extends copyright protection to computer programs in allforms as literary works: “Computer programs are protected as literary works within the meaning of Article 2 ofthe Berne Convention. Such protection applies to computer programs, whatever may be the mode or form oftheir expression.”Article 5 adopts the approach of the Supreme Court’s decision in Feist Publications, Inc. v. Rural TelephoneServ., 499 U.S. 340 (1991), which held that only the selection or arrangement of a compilation of facts such asa database, and not the facts themselves, can be protected under copyright. Article 5 provides: “Compilationsof data or other material, in any form, which by reason of the selection or arrangement of their contentsconstitute intellectual creations, are protected as such. This protection does not extend to the data or thematerial itself and is without prejudice to any copyright subsisting in the data or material contained in thecompilation.” The proposed WIPO Treaty on Intellectual Property in Respect of Databases would haveextended protection to the information itself in a database where such database was the fruit of substantial laborto compile. Basic Proposal for the Substantive Provisions of the Treaty on Intellectual Property in Respect ofDatabases to be Considered by the Diplomatic Conference, art. 1(1), WIPO Doc. CRNR/DC/6 (Aug. 30, 1996). The controversy generated by this Treaty precluded its adoptionby WIPO.Article 7(1) provides that authors of computer programs, cinematographic works, and works embodied inphonograms shall enjoy the exclusive right of authorizing commercial rental to the public of the originals orcopies of their works. Under Article 7(2), this rental right does not apply “in the case of computer programswhere the program itself is not the essential object of the rental” or “in the case of cinematographic works,unless such commercial rental has led to widespread copying of such works materially impairing the exclusiveright of reproduction.” The Agreed Statement for Articles 6 and 7 notes that the expressions “copies” and“original and copies,” being subject to the right of rental, “refer exclusively to fixed copies that can be put intocirculation as tangible copies.”Article 6 of an earlier draft of the treaty would have required Contracting Parties to abolish non-voluntarybroadcasting licenses within seven years of ratifying or acceding to the Treaty. This Article was deleted in thefinal adopted version.- 23 -