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II. RIGHTS
transmitting them to cable television systems. The court determined that “the Copyright Act
defines ’perform or display... publicly’ broadly enough to encompass indirect transmission to
the ultimate public.” Consequently, ... an intermediate carrier is not immune from copyright
liability simply because it does not retransmit a copyrighted signal to the public directly but
instead routes the signal to cable systems, which then retransmit to the public. ...
We believe the most logical interpretation of the Copyright Act is to hold that a public
performance or display includes “each step in the process by which a protected work wends its
way to its audience.” ... Under that analysis, it is clear that PrimeTime’s uplink transmission of
signals captured in the United States is a step in the process by which NFL’s protected work
wends its way to a public audience. In short, PrimeTime publicly displayed or performed
material in which the NFL owns the copyright. Because PrimeTime did not have authorization
to make such a public performance, PrimeTime infringed the NFL’s copyright.
NOTE:The WIPO Copyright Treaty of 1996 contains the following provision,
ratified by the United States and also likely shortly to be implemented
throughout the European Union, including the U.K.:
Article 8 (Right of Communication to the Public)
... [A]uthors of literary and artistic works shall enjoy the exclusive right
of authorizing any communication to the public of their works, by wire
or wireless means, including the making available to the public of their
works in such a way that members of the public may access these
works from a place and at a time individually chosen by them.
This provision would cover, among other things, the uploading of copyright
material on to a website.
