Advanced Copyright Issues on the Internet - Fenwick & West LLP

Thus, the WIPO Performances and Phonograms Treaty replicates the same uncertainty asthe WIPO <strong>Copyright</strong> Treaty with respect to the issue of whether transient “copies” ofperformances and phonograms will fall within the copyright owner’s right of reproduction. 57Indeed, the definition of the right of reproduction in Article 7 and Article 11 to include “direct orindirect” reproductions, together with the broad definition of “fixation” in Article 2(c), arguablyadopt an approach that is closer to the MAI decision than the WIPO <strong>Copyright</strong> Treaty.4. Whether Volition Is Required for Direct LiabilityEven assuming the rationale of the MAI case and the provisions of the WIPO Treaties areapplied to deem all reproductions during transmission of a work through the Internet to be“copies” within the copyright owner’s rights, a difficult issue arises as to who should beresponsible for the making of such copies. Multiple actors may be potentially connected with aparticular copy or copies of a work on the Internet, such as a work posted to a bulletin boardservice (BBS) – the original poster of the work, the BBS operator, the Online Service Provider(OSP) through which the BBS is offered, a user downloading a copy of the work from the BBS,and perhaps the operators of node computers through which a copy of the work may pass duringthe course of such downloading. Which one or more of these actors should be deemed to havemade the copy or copies?The most difficult aspect of the issue of which actors should be liable for copies made inthe course of the downloading, viewing or other transmission of a work through the Internetstems from the fact that many such copies will typically be made automatically. For example,“copies” of the work (in whole or in part) will automatically be made in the RAM (and possiblyin temporary hard disk storage) of each interim node computer within the transmission path ofthe work through the Internet. And the modems on the initiating and receiving ends of thetransmission will buffer the data to be transmitted. Internet search engine services may use“spiders” to “crawl” through the Internet and make copies in RAM of materials on websites inthe course of creating an index of that material.Should a volitional act be required on the part of a third party to be liable for a copymade during transmission? If so, is a direct volitional act to cause the copy to be made required(as in the case of the original poster or the ultimate recipient of the copy), or is it sufficient ifthere was a volitional act in setting up the automatic process that ultimately causes the copy to bemade (as in the case of the BBS operator, the OSP or the search engine service)? In view of the57Article 16 affords a generic vehicle for the adoption of exemptions or exceptions to rights conferred in theTreaty. Article 16(1) provides that “Contracting Parties may, in their national legislation, provide for the samekinds of limitations or exceptions with regard to the protection of performers and producers of phonograms asthey provide for in their national legislation, in connection with the protection of copyright in literary andartistic works.” Article 16(2) provides, however, similar to the WIPO <strong>Copyright</strong> Treaty, that “ContractingParties shall confine any limitations of or exceptions to rights provided for in this Treaty to certain special caseswhich do not conflict with a normal exploitation of the phonogram and do not unreasonably prejudice thelegitimate interests of the performer or of the producer of phonograms.”- 28 -