Advanced Copyright Issues on the Internet - Fenwick & West LLP

the current transmission technology of the Internet. The issue ignited debate in the United Statesin connection with the federal legislation to implement the treaty.(c) The WIPO Performances and Phonograms TreatyCuriously, despite the focus on and ultimate removal of the proposed Article 7 of theWIPO <strong>Copyright</strong> Treaty, Article 7 as adopted in the WIPO Performances and PhonogramsTreaty appears to come closer to adopting the approach of MAI. Article 7 gives performers theexclusive right of “authorizing the direct or indirect reproduction of their performances fixed inphonograms” (emphasis added). As originally proposed, Article 7 contained language evencloser to the MAI logic, for it expressed the reproduction right of performers as one of“authorizing the direct or indirect reproduction, whether permanent or temporary, of theirperformances fixed in phonograms” (emphasis added). The use of the phrase “permanent ortemporary” would more strongly have suggested that temporary interim reproductions ofperformances would be within the performer’s right of reproduction.In addition, Article 7(2) in an earlier draft was also deleted, which made reference totransient copies as follows:Subject to the conditions under, and without prejudice to the scope ofapplicability of, Article 19(2), it shall be a matter for legislation in ContractingParties to limit the right of reproduction in cases where a temporary reproductionhas the sole purpose of making the fixed performance perceptible or where atemporary reproduction is of a transient or incidental nature, provided that suchreproduction takes place in the course of use of the fixed performance that isauthorized by the performer or permitted by law in accordance with this Treaty.The Agreed Statement that was issued with respect to the right of reproduction in theWIPO Performances and Phonograms Treaty is very similar to the Agreed Statement on thesame subject that was issued with the WIPO <strong>Copyright</strong> Treaty. The Agreed Statement issuedwith the WIPO Performances and Phonograms Treaty provides:The reproduction right, as set out in Articles 7 and 11, and the exceptionspermitted thereunder through Article 16, fully apply in the digital environment, inparticular to the use of performances and phonograms in digital form. It isunderstood that the storage of a protected performance or phonogram in digitalform in an electronic medium constitutes a reproduction within the meaning ofthese Articles.Thus, the Agreed Statement for the WIPO Performances and Phonograms Treaty contains thesame ambiguities noted above with respect to the Agreed Statement for the WIPO <strong>Copyright</strong>Treaty.Similar to Article 7, Article 11 gives producers of phonograms the “exclusive right ofauthorizing the direct or indirect reproduction of their phonograms, in any manner or form.” As- 26 -