works, in any manner or form, includes direct and indirect reproduction of their
works, whether permanent or temporary.The reference to “temporary” reproductions would have seemed to cover copies in RAM.
The reference to “indirect” reproductions, particularly when coupled with the inclusion of
“temporary” reproductions, might have been broad enough to cover interim, partial
reproductions in RAM in the course of transmission of a work through the Internet, as well as
complete copies of a work made in RAM and/or on a hard disk at the receiving computer.
In addition, proposed Article 7(2) of the treaty seemed to recognize the possibility that
the language of Article 7(1) might be read to cover interim, partial reproductions during
transmission, for it would have allowed signatory members (referred to as “Contracting Parties”
in the treaty) to limit the right of reproduction in those instances:
(2) Subject to the conditions under, and without prejudice to the scope of
applicability of, Article 9(2) of the Berne Convention, it shall be a matter for
legislation in Contracting Parties to limit the right of reproduction in cases where
a temporary reproduction has the sole purpose of making the work perceptible or
where a temporary reproduction is of a transient or incidental nature, provided
that such reproduction takes place in the course of use of the work that is
authorized by the author or permitted by law in accordance with the Berne
Convention and this Treaty.^53(^53) Although this provision apparently was designed to ameliorate the potential mischief that might result from
deeming all interim copies of a work in the course of transmission to be within the copyright owner’s rights, it
suffered from a number of potential problems. First, it would have left the issue up to the individual
Contracting Parties whether to legislate exemptions. Thus, some Contracting Parties could have legislated such
exemptions, while others did not, and the scope of the exemptions could have varied from country to country.
As a result, whether interim copies during the course of transmission constitute infringement could have turned
on the countries through which the transmission path passes, which is arbitrary under the current transmission
technology of the Internet.
Second, Article 7(2) stated that the exemptions would apply only to transient or incidental reproductions taking
place in the course of an authorized use of a work. Thus, if the transmission itself is unauthorized, the
exemptions would not have applied, and there could still have been potential liability for the interim
reproductions. Yet the operators of the node computers in which the interim copies are made would have no
way of knowing whether any particular packet passing through the node is part of an authorized transmission.
Article 7(2) therefore was flawed.
Article 10(1) of the adopted version affords a more generic vehicle for the adoption of exemptions or exceptions
to rights conferred in the Treaty: “Contracting Parties may, in their national legislation, provide for limitations
of or exceptions to the rights granted to authors of literary and artistic works under this Treaty to an extent
consistent with exceptions or limitations provided for in the Berne Convention 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 requirement that exceptions “not unreasonably prejudice the legitimate interests of the author” provides
little guidance as to where the boundaries should lie around exceptions that Contracting Parties may wish to
adopt in implementing legislation. The Agreed Statement concerning Article 10 does nothing to clarify the
uncertainty: “It is understood that the provisions of Article 10 permit Contracting Parties to carry forward and
appropriately extend into the digital environment limitations and exceptions in their national laws which have