Advanced Copyright Issues on the Internet - Fenwick & West LLP

copyright holder’s rights, then the copyright holder would have very strong control over Internetuse of the copyrighted work. Which forms of copying the law should deem to be within thecontrol of the copyright owner and which should not presents a very difficult challenge.The cumulative effect of the copyright holder’s rights being implicated by every use of awork on the Internet may be to give the copyright owner the equivalent of exclusive rights of“transmission and access” of information. Indeed, the WIPO <strong>Copyright</strong> Treaty and the WIPOPerformances and Phonograms Treaty each make such rights express. However, the DMCAdoes not set up separate rights of transmission and access, although the draft European <strong>Copyright</strong>Directive would recognize such rights explicitly. Thus, the implementing legislative regimesadopted by various signatory countries to the WIPO treaties may result in varying scopes and/ordenominations of rights, which runs contrary to the goal of the WIPO treaties to harmonizecopyright law in the digital environment throughout the world.The ubiquitous nature of “copying” on the Internet raises other difficult issues. Forexample, the practice of dividing copyright rights (such as the reproduction right, the publicperformance right, and the distribution right) among separate rights holders, as is common in themovie and music industries, will raise difficult issues of overlapping rights when a work isexploited through the Internet, because the exercise of all such rights will involve the making of“copies.” Licensees may therefore need to seek permission from multiple rights holders thatmay not have been necessary in traditional media. 2353Moreover, the traditional divisions of the bundle of copyright rights may no longer makesense on the Internet. For example, it is common for different entities to hold the right toreproduce copies of a movie, to distribute copies of the movie, and to grant licenses for publicperformance of the movie. Under that division of rights, who has the right to make the movieavailable on the Internet for on-demand viewing by users, since on-demand viewings willinvolve the making of copies of the movie, the distribution of copies, and the public performanceof the movie? Or should it be the holder of the new right of transmission and access under theWIPO treaties? 2354 Because of the overlapping nature of copyright rights when applied to theInternet, new definitions and divisions of those rights will probably be necessary for onlineusage of copyrighted works. Corresponding new economic and royalty models and industrypractices will also have to evolve. In the meantime, many existing licenses will be unclear as towhich entity has rights to control online usage of a work, and one can expect to see muchlitigation over the interpretation of existing licenses. 23552353 See Lemley, supra note 6, at 568-72.2354 Because the new right of transmission and access in the WIPO treaties will be in addition to the other rights thatmay be implicated by Internet uses of copyrighted works, these new rights can be expected to increase theproblem of overlapping rights. For example, existing licenses will be silent on these new rights, and there willtherefore be great uncertainty as to whether the licensor retains such rights, or whether the licensee has a licenseunder such rights and, if so, of what scope.2355 See Lemley, supra note 6, at 572-74. One commentator has considered several possible ways of dealing withthe overlap of exclusive copyright rights that occurs on the Internet (placing the burden of overlap on the user;placing the burden of overlap on the copyright owner; and establishing a new right of transmission over a- 513 -