Advanced Copyright Issues on the Internet - Fenwick & West LLP

(b) Notwithstanding the provisions of section 106, it is not an infringement tomake a copy of a work in a digital format if such copying –(1) is incidental to the operation of a device in the course of the use of awork otherwise lawful under this title; and(2) does not conflict with the normal exploitation of the work and doesnot unreasonably prejudice the legitimate interests of the author.The proposed new clause (b)(1) was similar to the right granted in the existing Section117 of the copyright statute with respect to computer programs, which permits the making ofcopies of the program “as an essential step in the utilization of the computer program inconjunction with a machine.” 172 Clause (b)(1) would have extended this right to the otherwiselawful use of other types of works in a digital format, to the extent that copying is necessary forsuch use. It would seem to have covered activities such as the loading of a musical work intomemory in conjunction with playing the work, the incidental copies of a movie or other workordered on demand that are made in memory in the course of the downloading and viewing ofthe movie, and the various interim copies of a work that are made in node computers in theroutine course of an authorized transmission of the work through the Internet.The limiting language contained in new clause (b)(2) was drawn directly from the WIPOtreaties themselves. Specifically, Article 10 of the WIPO <strong>Copyright</strong> Treaty permits treatysignatories to provide for limitations of or exceptions to the rights granted under the treaty “incertain special cases that do not conflict with a normal exploitation of the work and do notunreasonably prejudice the legitimate interests of the author.” The scope of reach of thislanguage is obviously not self evident, and the boundaries of this exception to the reproductionright are therefore not entirely clear. However, the exception should apply to at least the mostcommon instances in which incidental copies must be made in the course of an authorized use ofa digital work, including in the course of an authorized transmission of that work through anetwork.Another bill introduced into Congress to implement the WIPO copyright treaties wasH.R. 3048, entitled the “Digital Era <strong>Copyright</strong> Enhancement Act,” which was introduced onNov. 14, 1997 by Rep. Rick Boucher. With respect to the reproduction right, H.R. 3048contained an identical amendment to Section 117 as S. 1146 that would have permitted themaking of incidental copies of a work in digital form in conjunction with the operation of adevice in the ordinary course of lawful use of the work.The clarifying amendment to Section 117 concerning the reproduction right that thesealternative bills would have set up was not ultimately adopted by Congress in the DMCA.17217 U.S.C. § 117.- 51 -