Section 602(a) was obviously drafted with a model of physical copies in mind.
“Importation” is not defined in the copyright statute, but the requirement that copies of a work be
“acquired outside the United States” might suggest that “importation” means the movement of
physical copies into the United States.^751 It is unclear how this right will be applied to Internet
transmissions into the United States, with respect to which no physical copies in a traditional
sense are moved across national borders. Because the NII White Paper takes the position that the
stream of data sent during a transmission does not constitute a “copy” of a copyrighted work, the
NII White Paper concludes that the Section 602(a) importation right does not apply to network
transmissions into the United States,^752 and recommends that Section 602 be amended to include
importation by transmission of copies, as well as by carriage or shipping of them.^753
However, because physical copies often end up on a computer in the United States as a
result of network transmissions into the United States, it is possible that the importation right will
be construed analogously to the distribution right with respect to transmissions, especially since
the importation right is defined in Section 602(a) in terms of the distribution right. Thus, if a
transmission is deemed to be within the distribution right, then it is possible that the importation
right will be construed to apply when transmissions of copies are made into the United States
from abroad.
In any event, the new right of communication to the public afforded under the WIPO
treaties, discussed in the next section, could help plug any hole that may exist in the traditional
importation right, at least with respect to transmissions into the United States that qualify as
“communications to the public,” if the such right is adopted in implementing legislation (as
noted in the next section, however, the DMCA does not contain an explicit right of
communication to the public).
F. The New Right of Transmission and Access Under the WIPO Treaties
The WIPO treaties each afford a broad new right of transmission and access to a
copyrighted work. The right is denominated a “right of communication to the public” in the
WIPO Copyright Treaty, and is denominated a “right of making available to the public” in the
WIPO Performances and Phonograms Treaty. Despite the difference in denomination, the rights
appear to be very similar.
(^751) Lemley, supra note 6, at 564.
(^752) NII White Paper at 68.
(^753) Id. at 135.