Advanced Copyright Issues on the Internet - Fenwick & West LLP

In addition, proposed Article 7(2) of the treaty seemed to recognize the possibility thatthe language of Article 7(1) might be read to cover interim, partial reproductions duringtransmission, for it would have allowed signatory members (referred to as “Contracting Parties”in the treaty) to limit the right of reproduction in those instances:(2) Subject to the conditions under, and without prejudice to the scope ofapplicability of, Article 9(2) of the Berne Convention, it shall be a matter forlegislation in Contracting Parties to limit the right of reproduction in cases wherea temporary reproduction has the sole purpose of making the work perceptible orwhere a temporary reproduction is of a transient or incidental nature, providedthat such reproduction takes place in the course of use of the work that isauthorized by the author or permitted by law in accordance with the BerneConvention and this Treaty. 50The proposed Article 7, and the subject of interim transmission copies in general,generated a lot of controversy at the Conference. Telecommunications companies and Internetproviders particularly objected to Article 7 because they feared that protection for temporarycopying would impose liability for the interim copying that inherently occurs in computernetworks. On the other hand, content providers such as the software, publishing and sound50Although this provision apparently was designed to ameliorate the potential mischief that might result fromdeeming all interim copies of a work in the course of transmission to be within the copyright owner’s rights, itsuffered from a number of potential problems. First, it would have left the issue up to the individualContracting Parties whether to legislate exemptions. Thus, some Contracting Parties could have legislated suchexemptions, while others did not, and the scope of the exemptions could have varied from country to country.As a result, whether interim copies during the course of transmission constitute infringement could have turnedon the countries through which the transmission path passes, which is arbitrary under the current transmissiontechnology of the Internet.Second, Article 7(2) stated that the exemptions would apply only to transient or incidental reproductions takingplace in the course of an authorized use of a work. Thus, if the transmission itself is unauthorized, theexemptions would not have applied, and there could still have been potential liability for the interimreproductions. Yet the operators of the node computers in which the interim copies are made would have noway of knowing whether any particular packet passing through the node is part of an authorized transmission.Article 7(2) therefore was flawed.Article 10(1) of the adopted version affords a more generic vehicle for the adoption of exemptions orexceptions to rights conferred in the Treaty: “Contracting Parties may, in their national legislation, provide forlimitations of or exceptions to the rights granted to authors of literary and artistic works under this Treaty to anextent consistent with exceptions or limitations provided for in the Berne Convention in certain special casesthat do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimateinterests of the author.”The requirement that exceptions “not unreasonably prejudice the legitimate interests of the author” provideslittle guidance as to where the boundaries should lie around exceptions that Contracting Parties may wish toadopt in implementing legislation. The Agreed Statement concerning Article 10 does nothing to clarify theuncertainty: “It is understood that the provisions of Article 10 permit Contracting Parties to carry forward andappropriately extend into the digital environment limitations and exceptions in their national laws which havebeen considered acceptable under the Berne Convention. Similarly, these provisions should be understood topermit Contracting Parties to devise new exceptions and limitations that are appropriate in the digital networkenvironment.”- 24 -