contained an identical amendment to Section 117 as S. 1146 that would have permitted the
making of incidental copies of a work in digital form in conjunction with the operation of a
device in the ordinary course of lawful use of the work.
The clarifying amendment to Section 117 concerning the reproduction right that these
alternative bills would have set up was not ultimately adopted by Congress in the DMCA.
(b) The European Copyright DirectiveThe European Copyright Directive contains strong statements of copyright owners’ rights
to control the reproduction, distribution and presentation of their works online. The European
Copyright Directive requires legislative action by EC member states with respect to four rights:
the reproduction right,^283 the communication to the public right,^284 the distribution right,^285 and
protection against the circumvention or abuse of electronic management and protection
systems.^286
With respect to the reproduction right, the European Copyright Directive adopts
essentially the same broad language of proposed Article 7(1) of the WIPO Copyright Treaty that
provoked so much controversy and was ultimately deleted from the WIPO Copyright Treaty.
Specifically, Article 2 of the European Copyright Directive provides that member states must
“provide the exclusive right to authorize or prohibit direct or indirect, temporary or permanent
reproduction by any means and in any form” of copyrighted works. The extension of the
reproduction right to “direct or indirect” and “temporary or permanent” reproductions would
seem to cover even ephemeral copies of a work made during the course of transmission or use of
a copyrighted work in an online context. Indeed, the official commentary to Article 2 notes that
the definition of the reproduction right covers “all relevant acts of reproduction, whether on-line
or off-line, in material or immaterial form.”^287 The commentary also appears to adopt the
approach of the MAI case in recognizing copies of a work in RAM as falling within the
reproduction right: “The result of a reproduction may be a tangible permanent copy, like a book,
but it may just as well be a non-visible temporary copy of the work in the working memory of a
computer.”^288
To provide counterbalance, however, Article 5(1) of the European Copyright Directive
provides an automatic exemption from the reproduction right for “[t]emporary acts of
reproduction ... which are transient or incidental, which are an integral and essential part of a
technological process whose sole purpose is to enable: (a) a transmission in a network between
third parties by an intermediary or (b) a lawful use of a work or other subject-matter to be made,
(^283) European Copyright Directive, art. 2.
(^284) Id. art. 3.
(^285) Id. art. 4.
(^286) Id. arts. 6-7.
(^287) Commentary to Art. 2, ¶ 2.
(^288) Id. ¶ 3.