prohibitions against the circumvention of technologies to prevent unauthorized access to
copyrighted works and to provide electronic rights management information about a work,
although it adopted a different approach to doing so than the DMCA, as discussed further below.
S. 1146 also contained, however, a much broader package of copyright-related measures.
With respect to the reproduction right, S. 1146 would have clarified that ephemeral copies of a
work in digital form that are incidental to the operation of a device in the ordinary course of
lawful use of the work do not infringe the reproduction right. Specifically, S. 1146 would have
added a new subsection (b) to Section 117 of the copyright statute to read as follows:
(b) Notwithstanding the provisions of section 106, it is not an infringement to
make a copy of a work in a digital format if such copying –(1) is incidental to the operation of a device in the course of the use of a
work otherwise lawful under this title; and(2) does not conflict with the normal exploitation of the work and does
not unreasonably prejudice the legitimate interests of the author.The proposed new clause (b)(1) was similar to the right granted in the existing Section
117 of the copyright statute with respect to computer programs, which permits the making of
copies of the program “as an essential step in the utilization of the computer program in
conjunction with a machine.”^282 Clause (b)(1) would have extended this right to the otherwise
lawful use of other types of works in a digital format, to the extent that copying is necessary for
such use. It would seem to have covered activities such as the loading of a musical work into
memory in conjunction with playing the work, the incidental copies of a movie or other work
ordered on demand that are made in memory in the course of the downloading and viewing of
the movie, and the various interim copies of a work that are made in node computers in the
routine course of an authorized transmission of the work through the Internet.
The limiting language contained in new clause (b)(2) was drawn directly from the WIPO
treaties themselves. Specifically, Article 10 of the WIPO Copyright Treaty permits treaty
signatories to provide for limitations of or exceptions to the rights granted under the treaty “in
certain special cases that do not conflict with a normal exploitation of the work and do not
unreasonably prejudice the legitimate interests of the author.” The scope of reach of this
language is obviously not self evident, and the boundaries of this exception to the reproduction
right are therefore not entirely clear. However, the exception should apply to at least the most
common instances in which incidental copies must be made in the course of an authorized use of
a digital work, including in the course of an authorized transmission of that work through a
network.
Another bill introduced into Congress to implement the WIPO copyright treaties was
H.R. 3048, entitled the “Digital Era Copyright Enhancement Act,” which was introduced on
Nov. 14, 1997 by Rep. Rick Boucher. With respect to the reproduction right, H.R. 3048
(^282) 17 U.S.C. § 117.