Advanced Copyright Issues on the Internet - Fenwick & West LLP

ecording industries, opposed any open-ended approach that would permit all temporarycopying. 51To resolve the controversy, the proposed Article 7 was ultimately simply deleted entirelyfrom the adopted version of the treaty. 52 The Agreed Statement pertaining to the right ofreproduction (Previous Article 7) provides:The reproduction right, as set out in Article 9 of the Berne Convention, and theexceptions permitted thereunder, 53 fully apply in the digital environment, inparticular to the use of works in digital form. It is understood that the storage of aprotected work in digital form in an electronic medium constitutes a reproductionwithin the meaning of Article 9 of the Berne Convention.The Assistant Secretary of Commerce and Commissioner of Patents and Trademarks atthe time, Bruce Lehman, who headed the U.S. delegation to the Conference, stated at the end ofthe Conference that the Agreed Statement was intended to make clear that the reproduction rightincludes the right to make digital copies, but also that certain copying, e.g., for temporary digitalstorage, will be permitted. Commissioner Lehman further expressed the view that the treatylanguage is broad enough to permit domestic legislation that would remove any liability on thepart of network providers where the copying is simply the result of their functioning as a conduitfor network services. 54 However, the Agreed Statement itself does nothing more than referenceArticle 9 of the Berne Convention, which of course was adopted long before digital copies werean issue under copyright law, and makes no explicit reference to “temporary digital storage.” Inaddition, the phrase “storage of a protected work in digital form in an electronic medium” couldpotentially include temporary digital storage in a node computer during transmission. It istherefore difficult to agree with Commissioner Lehman that the Agreed Statement makesanything “clear.”Rather, the Agreed Statement seems to leave virtually open ended the question ofwhether temporary images in RAM will be treated as falling within the copyright owner’s rightof reproduction. The uncertainty surrounding the scope of the reproduction right in a digitalenvironment that, at least early on, seemed to divide U.S. courts therefore appears destined toreplicate itself in the international arena. The uncertainty is heightened by the fact that Article 9of the Berne Convention allows signatories to adopt certain exceptions to the reproduction right,raising the prospect of inconsistent exceptions being adopted from country to country. As aresult, whether interim copies made during the course of transmission constitute infringementmay turn on the countries through which the transmission path passes, which is arbitrary under51525354“WIPO Delegates Agree on Two Treaties,” 2 BNA’s Electronic Info. Pol’y & L. Rep. 22, 22 (1997).Id.Article 9(2) of the Berne Convention provides, “It shall be a matter for legislation in the countries of the Unionto permit the reproduction of such works in certain special cases, provided that such reproduction does notconflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests ofthe author.”“WIPO Delegates Agree on Two Treaties,” 2 BNA’s Electronic Info. Pol’y & L. Rep. 22, 22-23 (1997).- 25 -