- The Right of Distribution Under the WIPO Treaties
Article 6 of the WIPO Copyright Treaty provides that authors of literary and artistic
works shall enjoy “the exclusive right of authorizing the making available to the public of the
original and copies of their works through sale or other transfer of ownership.” This right seems
potentially broader than the public distribution right under current U.S. law, because it includes
the mere “making available” of copies of works to the public, whereas U.S. law currently reaches
only the actual distribution of copies.
It is unclear whether this “making available” right reaches the mere posting of copies on
the Internet. The Agreed Statement for Article 6 provides: “As used in these Articles, the
expressions ‘copies’ and ‘original and copies,’ being subject to the right of distribution and the
right of rental under the said Articles, refer exclusively to fixed copies that can be put into
circulation as tangible objects.” One interpretation of the Agreed Statement is that a copy posted
on the Internet, being electronic in format, is not capable of being “put into circulation as
tangible objects.”
On the other hand, one might argue that at least complete copies downloaded to
permanent storage at recipient computers should be treated as the equivalent of circulation of
copies “as tangible objects.” If, for example, copies of a book were sold on floppy disks rather
than on paper, such floppy disks might well be treated as the placement of copies into circulation
as tangible objects. Yet a network download can result in a copy on a floppy disk (or a hard
disk) at the recipient’s computer. One could therefore argue that the transmission of electronic
copies to “physical” storage media at the receiving end should be treated as within the
distribution right of the WIPO treaty.
In any event, this “making available” right might more easily reach BBS operators and
OSPs through which works are “made available” on the Internet. It is unclear whether a
requirement of volition will be read into Article 6 for liability, as some U.S. courts have required
for liability under the current rights of public distribution, display and performance. Moreover,
because the WIPO Copyright Treaty does not define the “public,” the same ambiguities will arise
as under current U.S. law concerning what type of availability will be sufficient to be “public,”
particularly with respect to the “making available” of works to limited audiences.
Articles 8 and 12 of the WIPO Performances and Phonograms Treaty contain rights of
distribution very similar to that of Article 6 of the WIPO Copyright Treaty,^748 so the same
ambiguities noted above will arise.
(^748) Article 8(1) provides, “Performers shall enjoy the exclusive right of authorizing the making available to the
public of the original and copies of their performances fixed in phonograms through sale or other transfer of
ownership.” Article 12(1) provides, “Producers of phonograms shall enjoy the exclusive right of authorizing
the making available to the public of the original and copies of their phonograms through sale or other transfer
of ownership.”
Like the Agreed Statement for the WIPO Copyright Treaty quoted in the text, the Agreed Statement for Articles
8 and 12 of the WIPO Performances and Phonograms Treaty provides: “As used in these Articles, the