qualify for these safe harbors, the standards under the case law discussed above will apply to
determine liability.
- The Reproduction Right Under WIPO Implementing Legislation
(a) United States LegislationFour bills were introduced in Congress to implement the WIPO treaties. Two of them,
neither of which were ultimately enacted, would have attempted to clarify the issue of whether
interim copies made during the course of transmission infringe the reproduction right. The bill
that was adopted – The Digital Millennium Copyright Act – contains nothing explicitly
addressing the scope of the reproduction right in a digital environment.
(1) The Digital Millennium Copyright ActThe DMCA was signed into law by President Clinton on Oct. 28, 1998. It is essentially
an enactment of H.R. 2281, introduced in the House in July of 1997 by Rep. Howard Coble, and
its nearly identical counterpart in the Senate, S. 1121, introduced by Sen. Orrin Hatch also in
July of 1997, which was later combined with another bill and, as combined, denominated S.
- Both H.R. 2281 and S. 1121 were introduced with the support of the Clinton
administration.
Title I of the DMCA, entitled the “WIPO Copyright and Performances and Phonograms
Treaties Implementation Act of 1998” and comprised of Sections 101 through 105, implements
the WIPO treaties. Title I takes a minimalist approach to implementing the requirements of the
WIPO treaties. The Clinton administration took the view that most of the enhanced copyright
protections set forth in the treaties were already available under United States law, so that no
major changes to U.S. law were believed necessary to implement the treaties.
Specifically, the DMCA addresses only the requirements of Arts. 11 and 12 of the WIPO
Copyright Treaty, and of Arts. 18 and 19 of the WIPO Performances and Phonograms Treaty, to
provide adequate legal protection and effective legal remedies against (i) the circumvention of
effective technological measures that are used by rights holders to restrict unauthorized acts with
respect to their protected works, and (ii) the removal or alteration of any electronic rights
management information (information which identifies the work, the author of the work, the
owner of any right in the work, or information about the terms and conditions of use of the
work), or the distribution or communication to the public of copies of works knowing that the
electronic rights management information has been removed or altered. The specific provisions
of these bills are discussed in further detail below. These bills contain nothing addressing the
reproduction right or how that right relates to the digital environment.
(2) Legislation Not AdoptedAn alternative bill to implement the WIPO treaties, S. 1146, entitled the “Digital
Copyright Clarification and Technology Education Act of 1997,” was introduced on Sept. 3,
1997 by Sen. John Ashcroft. Like the DMCA, S. 1146 contained language to implement