Advanced Copyright Law on the Internet

5. The Right of Distribution Under WIPO Implementing Legislation

(a) United States Legislation

The DMCA does not contain any provisions that would modify the right of distribution as
it exists under current United States law. Thus, the DMCA implicitly deems the current right of
public distribution to be equivalent to the Article 6 right.

(b) The European Copyright Directive

Article 4(1) of the European Copyright Directive requires member states to “provide for
authors, in respect of the original of their works or of copies thereof, the exclusive right to
authorize or prohibit any form of distribution to the public by sale or otherwise.” Use of the
phrase “any form” of distribution suggests that a broad right is intended, although, as in the
United States, the right applies only with respect to the distribution of “copies.”^749 Consistent
with the Agreed Statement of the WIPO Copyright Treaty, the comments to Article 4(1) of the
European Copyright Directive recite that “the expressions ‘copies’ and ‘originals and copies,’
being subject to the distribution right, refer exclusively to fixed copies that can be put into
circulation as tangible objects.”^750

Thus, although use of the phrase “any form” of distribution might suggest that all online
transmissions of copyrighted works would fall within the distribution right of the European
Copyright Directive, the comments limit the distribution right “to fixed copies that can be put
into circulation as tangible objects.” It seems that the drafters of the European Copyright
Directive intended the right of communication to the public, rather than the right of distribution,
to cover online transmissions of copyrighted works, for Recital (23) states that the right of
communication to the public “should be understood in a broad sense covering all communication
to the public not present at the place where the communication originates. This right should
cover any such transmission or retransmission of a work to the public by wire or wireless means,
including broadcasting. This right should not cover any other acts.”

E. The Right of Importation

Section 602(a) of the copyright statute provides that “importation into the United States
... of copies or phonorecords of a work that have been acquired outside the United States is an
infringement of the exclusive right to distribute copies ....” One purpose of Section 602(a) was
to allow a copyright owner to prevent distribution into the United States of copies of works that,
if made in the United States, would have been infringing, but were made abroad outside the
reach of United States copyright law.

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.”

(^749) Art. 4(2) deals with exhaustion of the distribution right under the first sale doctrine, and will be discussed in
Section III.F below.
(^750) Commentary to Art. 4, ¶ 1.