Advanced Copyright Issues on the Internet - Fenwick & West LLP

interim copies made during the course of transmission infringe the reproduction right. The billthat was adopted – The Digital Millennium <strong>Copyright</strong> Act – contains nothing explicitlyaddressing the scope of the reproduction right in a digital environment.(1) The Digital Millennium <strong>Copyright</strong> ActThe DMCA was signed into law by President Clinton on Oct. 28, 1998. It is essentiallyan enactment of H.R. 2281, introduced in the House in July of 1997 by Rep. Howard Coble, andits nearly identical counterpart in the Senate, S. 1121, introduced by Sen. Orrin Hatch also inJuly of 1997, which was later combined with another bill and, as combined, denominated S.2037. Both H.R. 2281 and S. 1121 were introduced with the support of the Clintonadministration.Title I of the DMCA, entitled the “WIPO <strong>Copyright</strong> and Performances and PhonogramsTreaties Implementation Act of 1998” and comprised of Sections 101 through 105, implementsthe WIPO treaties. Title I takes a minimalist approach to implementing the requirements of theWIPO treaties. The Clinton administration took the view that most of the enhanced copyrightprotections set forth in the treaties were already available under United States law, so that nomajor changes to U.S. law were believed necessary to implement the treaties.Specifically, the DMCA addresses only the requirements of Arts. 11 and 12 of the WIPO<strong>Copyright</strong> Treaty, and of Arts. 18 and 19 of the WIPO Performances and Phonograms Treaty, toprovide adequate legal protection and effective legal remedies against (i) the circumvention ofeffective technological measures that are used by rights holders to restrict unauthorized acts withrespect to their protected works, and (ii) the removal or alteration of any electronic rightsmanagement information (information which identifies the work, the author of the work, theowner of any right in the work, or information about the terms and conditions of use of thework), or the distribution or communication to the public of copies of works knowing that theelectronic rights management information has been removed or altered. The specific provisionsof these bills are discussed in further detail below. These bills contain nothing addressing thereproduction right or how that right relates to the digital environment.(2) Legislation Not AdoptedAn alternative bill to implement the WIPO treaties, S. 1146, entitled the “Digital<strong>Copyright</strong> Clarification and Technology Education Act of 1997,” was introduced on Sept. 3,1997 by Sen. John Ashcroft. Like the DMCA, S. 1146 contained language to implementprohibitions against the circumvention of technologies to prevent unauthorized access tocopyrighted works and to provide electronic rights management information about a work,although it adopted a different approach to doing so than the DMCA, as discussed further below.S. 1146 also contained, however, a much broader package of copyright-related measures.With respect to the reproduction right, S. 1146 would have clarified that ephemeral copies of awork in digital form that are incidental to the operation of a device in the ordinary course oflawful use of the work do not infringe the reproduction right. Specifically, S. 1146 would haveadded a new subsection (b) to Section 117 of the copyright statute to read as follows:- 50 -