Rather, the Agreed Statement seems to leave virtually open ended the question of
whether temporary images in RAM will be treated as falling within the copyright owner’s right
of reproduction. The uncertainty surrounding the scope of the reproduction right in a digital
environment that, at least early on, seemed to divide U.S. courts therefore appears destined to
replicate itself in the international arena. The uncertainty is heightened by the fact that Article 9
of the Berne Convention allows signatories to adopt certain exceptions to the reproduction right,
raising the prospect of inconsistent exceptions being adopted from country to country. As a
result, whether interim copies made during the course of transmission constitute infringement
may turn on the countries through which the transmission path passes, which is arbitrary under
the current transmission technology of the Internet. The issue ignited debate in the United States
in connection with the federal legislation to implement the treaty.
(c) The WIPO Performances and Phonograms TreatyCuriously, despite the focus on and ultimate removal of the proposed Article 7 of the
WIPO Copyright Treaty, Article 7 as adopted in the WIPO Performances and Phonograms
Treaty appears to come closer to adopting the approach of MAI. Article 7 gives performers the
exclusive right of “authorizing the direct or indirect reproduction of their performances fixed in
phonograms” (emphasis added). As originally proposed, Article 7 contained language even
closer to the MAI logic, for it expressed the reproduction right of performers as one of
“authorizing the direct or indirect reproduction, whether permanent or temporary, of their
performances fixed in phonograms” (emphasis added). The use of the phrase “permanent or
temporary” would more strongly have suggested that temporary interim reproductions of
performances would be within the performer’s right of reproduction.
In addition, Article 7(2) in an earlier draft was also deleted, which made reference to
transient copies as follows:
Subject to the conditions under, and without prejudice to the scope of
applicability of, Article 19(2), it shall be a matter for legislation in Contracting
Parties to limit the right of reproduction in cases where a temporary reproduction
has the sole purpose of making the fixed performance perceptible or where a
temporary reproduction is of a transient or incidental nature, provided that such
reproduction takes place in the course of use of the fixed performance that is
authorized by the performer or permitted by law in accordance with this Treaty.The Agreed Statement that was issued with respect to the right of reproduction in the
WIPO Performances and Phonograms Treaty is very similar to the Agreed Statement on the
same subject that was issued with the WIPO Copyright Treaty. The Agreed Statement issued
with the WIPO Performances and Phonograms Treaty provides:
The reproduction right, as set out in Articles 7 and 11, and the exceptions
permitted thereunder through Article 16, fully apply in the digital environment, in
particular to the use of performances and phonograms in digital form. It is
understood that the storage of a protected performance or phonogram in digital