their own copyright laws already conform to the dictates of the European Copyright Directive in
adopting legislation in response to it.^51 The WIPO implementation legislation in the United
States and the European Copyright Directive will be discussed at length throughout this paper as
they relate to the various issues treated herein.
(b) The WIPO Copyright TreatyArticle 7 of an earlier draft of the WIPO Copyright Treaty would apparently have
adopted the approach of MAI to the question of whether RAM copies fall within the
reproduction right of the copyright holder.^52 The proposed Article 7(1) provided:
(1) The exclusive right accorded to authors of literary and artistic works in
Article 9(1) of the Berne Convention of authorizing the reproduction of their(^51) The European Copyright Directive was first circulated for comments among European legal experts. It was
then officially published at the end of 1997 for a more public debate of its provisions. The European Parliament
approved a final draft of the Directive on February 14, 2001. The European Commission, acting through the
European Union ministers, accepted the final draft of the Directive on April 9, 2001.
(^52) The WIPO Copyright Treaty contains a number of important provisions relevant to the Internet that are not
discussed elsewhere in this paper. Article 2 codifies the idea/expression dichotomy of copyright law:
“Copyright protection extends to expressions and not to ideas, procedures, methods of operation or
mathematical concepts as such.” Article 4 expressly extends copyright protection to computer programs in all
forms as literary works: “Computer programs are protected as literary works within the meaning of Article 2 of
the Berne Convention. Such protection applies to computer programs, whatever may be the mode or form of
their expression.”
Article 5 adopts the approach of the Supreme Court’s decision in Feist Publications, Inc. v. Rural Telephone
Serv., 499 U.S. 340 (1991), which held that only the selection or arrangement of a compilation of facts such as a
database, and not the facts themselves, can be protected under copyright. Article 5 provides: “Compilations of
data or other material, in any form, which by reason of the selection or arrangement of their contents constitute
intellectual creations, are protected as such. This protection does not extend to the data or the material itself and
is without prejudice to any copyright subsisting in the data or material contained in the compilation.” The
proposed WIPO Treaty on Intellectual Property in Respect of Databases would have extended protection to the
information itself in a database where such database was the fruit of substantial labor to compile. Basic
Proposal for the Substantive Provisions of the Treaty on Intellectual Property in Respect of Databases to be
Considered by the Diplomatic Conference, art. 1(1), WIPO Doc. CRNR/DC/6 (Aug. 30, 1996)
<www.wipo.org/eng/diplconf/6dc_all.htm>. The controversy generated by this Treaty precluded its adoption
by WIPO.
Article 7(1) provides that authors of computer programs, cinematographic works, and works embodied in
phonograms shall enjoy the exclusive right of authorizing commercial rental to the public of the originals or
copies of their works. Under Article 7(2), this rental right does not apply “in the case of computer programs
where the program itself is not the essential object of the rental” or “in the case of cinematographic works,
unless such commercial rental has led to widespread copying of such works materially impairing the exclusive
right of reproduction.” The Agreed Statement for Articles 6 and 7 notes that the expressions “copies” and
“original and copies,” being subject to the right of rental, “refer exclusively to fixed copies that can be put into
circulation as tangible copies.”
Article 6 of an earlier draft of the treaty would have required Contracting Parties to abolish non-voluntary
broadcasting licenses within seven years of ratifying or acceding to the Treaty. This Article was deleted in the
final adopted version.