Advanced Copyright Issues on the Internet - Fenwick & West LLP

(b) The European <strong>Copyright</strong> DirectiveThe European <strong>Copyright</strong> Directive contains strong statements of copyright owners’ rightsto control the reproduction, distribution and presentation of their works online. The European<strong>Copyright</strong> Directive requires legislative action by EC member states with respect to four rights:the reproduction right, 173 the communication to the public right, 174 the distribution right, 175 andprotection against the circumvention or abuse of electronic management and protectionsystems. 176With respect to the reproduction right, the European <strong>Copyright</strong> Directive adoptsessentially the same broad language of proposed Article 7(1) of the WIPO <strong>Copyright</strong> Treaty thatprovoked so much controversy and was ultimately deleted from the WIPO <strong>Copyright</strong> Treaty.Specifically, Article 2 of the European <strong>Copyright</strong> Directive provides that member states must“provide the exclusive right to authorize or prohibit direct or indirect, temporary or permanentreproduction by any means and in any form” of copyrighted works. The extension of thereproduction right to “direct or indirect” and “temporary or permanent” reproductions wouldseem to cover even ephemeral copies of a work made during the course of transmission or use ofa copyrighted work in an online context. Indeed, the official commentary to Article 2 notes thatthe definition of the reproduction right covers “all relevant acts of reproduction, whether on-lineor off-line, in material or immaterial form.” 177 The commentary also appears to adopt theapproach of the MAI case in recognizing copies of a work in RAM as falling within thereproduction right: “The result of a reproduction may be a tangible permanent copy, like a book,but it may just as well be a non-visible temporary copy of the work in the working memory of acomputer.” 178To provide counterbalance, however, Article 5(1) of the European <strong>Copyright</strong> Directiveprovides an automatic exemption from the reproduction right for “[t]emporary acts ofreproduction … which are transient or incidental, which are an integral and essential part of atechnological process whose sole purpose is to enable: (a) a transmission in a network betweenthird parties by an intermediary or (b) a lawful use of a work or other subject-matter to be made,and which have no independent economic significance.” This provision is very similar to thenew clause (b) that would have been added to Section 117 of the U.S. copyright statute under S.1146 and H.R. 3048 (discussed in Section II.A.5(a)(2) above). The Article 5(1) exception wouldappear to cover the store and forward procedure adopted by routers and the RAM copy producedas a result of browsing at least by a private user (whether browsing for a commercial purpose173174175176177178European <strong>Copyright</strong> Directive, art. 2.Id. art. 3.Id. art. 4.Id. arts. 6-7.Commentary to Art. 2, 2.Id. 3.- 52 -