The right of transmission and access under Article 8 of the WIPO Copyright Treaty is
similar to (and potentially broader than) the amendment to U.S. copyright law proposed in the
NII White Paper “to expressly recognize that copies or phonorecords of works can be distributed
to the public by transmission, and that such transmissions fall within the exclusive distribution
right of the copyright owner.”^757 The NII White Paper’s proposal would expand the distribution
right, as opposed to creating a wholly new right, as the WIPO Copyright Treaty does. The
amendment proposed by the NII White Paper proved to be very controversial, and implementing
legislation introduced in Congress in 1996 ultimately did not win passage.
The European Court of Justice ruled on Mar. 7, 2013 that the right of communication to
the public in the EU Copyright Directive covers any transmission or retransmission of a work to
the public not present at the place where the communication originates, whether it be by wire or
wireless means, including broadcasting. Thus, television broadcasters may prohibit the
retransmission of their programs on the Internet by another company. The decision arose out of
a case brought by U.K.-based commercial broadcaster ITV against TVCatchup Ltd., an Internet
television service that offered many programs via live streaming. TVCatchup argued that it was
not in violation of EU copyright law because its subscribers, all based in the U.K., had paid the
annual TV license fee, the funds of which were used to finance public broadcasters such as the
BBC and ITV. ITV sued in a U.K. court, which referred the case to the European Court of
Justice to get an interpretation of what constitutes a “communication to the public.” The ECJ
also ruled that authorizing the inclusion of protected works in a communication to the public
does not exhaust the right to authorize or prohibit other communications to those works to the
public. Accordingly, when a given work is put to multiple use, each transmission or
retransmission of that work using a specific technical means must, as a rule, be individually
authorized by the copyright owner. The ECJ concluded that because the production of a program
made available through retransmission over the Internet uses a technology different from that of
the original communication, the retransmission must be considered to be a “communication”
within the meaning of the EU Copyright Directive.^758
- The Right of Making Available to the Public in the WIPO Performances
and Phonograms Treaty
Articles 10 and 14 of the WIPO Performances and Phonograms Treaty grant analogous
rights for performers and producers of phonograms to the right of “communication to the public”
contained in Article 8 of the WIPO Copyright Treaty. The WIPO Performances and
Phonograms Treaty, however, casts these rights as ones of “making available to the public.”
Specifically, Article 10 of the WIPO Performances and Phonograms Treaty provides:
Performers shall enjoy the exclusive right of authorizing the making available to
the public of their performances fixed in phonograms, by wire or wireless means,(^757) NII White Paper at 130.
(^758) Joe Kirwin, “Broadcaster Can Block Retransmission of Programs on Internet, EU High Court Says,” BNA’s
Patent, Trademark & Copyright Journal (Mar. 12, 2013).