public by any medium, other than broadcasting.”^754 This transmission right will
potentially site the infringement at the place of transmission, in addition to the point
of receipt of a transmitted work (under the reproduction right).- Right of Authorization. It also affords the exclusive right of “authorizing” any
communication to the public. No actual communications to the public are apparently
necessary to infringe the right. - Right of Access. The right of authorizing communications to the public explicitly
includes “making available to the public” a work “in such a way that members of the
public may access” the work “from a place and a time individually chosen by them”
(a right of access).^755 This access right would seem to allow the copyright holder to
remove an infringing posting of a work prior to any downloading of that work. This
right may also expand potential liability beyond just posters or recipients of infringing
material on the Internet to include OSPs and BBS operators, who could be said to
make a work available to the public in such a way that members of the public may
access it.
The Agreed Statement for Article 8, however, appears aimed at limiting the breadth of
the net of potential liability that Article 8 might establish. The Agreed Statement provides: “It is
understood that the mere provision of physical facilities for enabling or making a communication
does not in itself amount to communication within the meaning of this Treaty or the Berne
Convention. It is further understood that nothing in Article 8 precludes a Contracting Party from
applying Article 11bis(2).” It is unclear who the “mere” provider of “physical facilities” was
meant to reference – only the provider of telecommunications lines (such as phone companies)
through which a work is transmitted, or other service providers such as OSPs or BBS operators,
who may provide “services” in addition to “facilities.”
Another unclear point with respect to the scope of the right of communication to the
public is who the “public” is. Neither the WIPO Copyright Treaty nor the European Copyright
Directive provide any explanation of “to the public,” although the Commission in its 1997
commentary to one of the earlier drafts of the Directive stated that “public” included “individual
members of the public,” but went on to state that “the provision does not cover mere private
communications.”^756
(^754) Article 2(f) of the WIPO Performances and Phonograms Treaty defines “broadcasting” to mean “the
transmission by wireless means for public reception of sounds or of images and sounds or of the representations
thereof ....” This definition seems to contemplate isochronous transmission.
(^755) Although “public” is not defined in the WIPO Copyright Treaty, the reference in Article 10 to access by
members of the public “from a place and at a time individually chosen by them” is very similar to the definition
of display or performance of a work “publicly” in Section 101 of the U.S. copyright statute, which applies
“whether the members of the public capable of receiving the performance or display receive it in the same place
or in separate places and at the same time or at different times.”
(^756) Harrington & Berking, supra note 289, at 4.