crucial question whether the MAI approach will be internationalized. In any event, these two
treaties would strengthen copyright holders’ rights of “distribution” and would create new rights
of “making available to the public” a copyrighted work, both of which are implicated by
transmissions through the Internet nearly as broadly as the right of reproduction.
The ubiquitous nature of “copying” in the course of physical transmission gives the
copyright owner potentially very strong rights with respect to the movement of copyrighted
material through the Internet, and has moved copyright to the center of attention as a form of
intellectual property on the Internet. If the law categorizes all interim and received transmissions
as “copies” for copyright law purposes, or treats all such transmissions as falling within the right
of distribution of the copyright owner, then activities that have been permissible with respect to
traditional tangible copies of works, such as browsing and transfer, may now fall within the
control of the copyright holder.
This work discusses the multitude of areas in which copyright issues arise in an online
context. Although the issues will, for simplicity of reference, be discussed in the context of the
Internet, the analysis applies to any form of online usage of copyrighted works. Part II of this
work discusses the various copyright rights that may be implicated by transmissions and use of
works on the Internet, including new rights and remedies, as well as certain limitations on
liability for online service providers afforded under federal statutes. Part III then analyzes the
application of those rights to various activities on the Internet, such as browsing, caching,
operation of an online service or bulletin board, linking to other sites, creation of derivative
works, and resale or subsequent transfer of works downloaded from the Internet. Part III also
analyzes the application of the fair use doctrine and the implied license doctrine to various
Internet activities. Because the law is still developing with respect to many of these issues,
considerable uncertainty is likely to exist as the issues are worked out over time through the
courts and the various relevant legislative bodies and industry organizations.
II. RIGHTS IMPLICATED BY TRANSMISSION AND USE
OF WORKS ON THE INTERNET
This Part discusses the various rights of the copyright holder – the right of reproduction,
the right of public performance, the right of public display, the right of public distribution, the
right of importation, and the new rights of transmission and access – that are implicated by the
transmission and use of works on the Internet.
A. The Right of Reproduction
The single most important copyright right implicated by the transmission and use of
works on the Internet is the right of reproduction. As elaborated below, if the law categorizes all
interim and received transmissions as “copies” for copyright law purposes, then a broad range of
(^4) World Intellectual Property Organization Performances and Phonograms Treaty, Apr. 12, 1997, S. Treaty Doc.
No. 105-17 (1997).