Thus, the WIPO Performances and Phonograms Treaty replicates the same uncertainty as
the WIPO Copyright Treaty with respect to the issue of whether transient “copies” of
performances and phonograms will fall within the copyright owner’s right of reproduction.^60
Indeed, the definition of the right of reproduction in Article 7 and Article 11 to include “direct or
indirect” reproductions, together with the broad definition of “fixation” in Article 2(c), arguably
adopt an approach that is closer to the MAI decision than the WIPO Copyright Treaty.
- The Requirement of Volition for Direct Liability
Even assuming the rationale of the MAI case and the provisions of the WIPO Treaties are
applied to deem all reproductions during transmission of a work through the Internet to be
“copies” within the copyright owner’s rights, a difficult issue arises as to who should be
responsible for the making of such copies. Multiple actors may be potentially connected with a
particular copy or copies of a work on the Internet, such as a work posted to a bulletin board
service (BBS) – the original poster of the work, the BBS operator, the Online Service Provider
(OSP) through which the BBS is offered, a user downloading a copy of the work from the BBS,
and perhaps the operators of node computers through which a copy of the work may pass during
the course of such downloading. Which one or more of these actors should be deemed to have
made the copy or copies?
The most difficult aspect of the issue of which actors should be liable for copies made in
the course of the downloading, viewing or other transmission of a work through the Internet
stems from the fact that many such copies will typically be made automatically. For example,
“copies” of the work (in whole or in part) will automatically be made in the RAM (and possibly
in temporary hard disk storage) of each interim node computer within the transmission path of
the work through the Internet. And the modems on the initiating and receiving ends of the
transmission will buffer the data to be transmitted. Internet search engine services may use
Article 15 does not represent a complete resolution of the level of rights of broadcasting and communication to
the public that should be enjoyed by performers and phonogram producers in the digital age. Delegations were
unable to achieve consensus on differing proposals for aspects of exclusivity to be provided in certain
circumstances or for rights to be provided without the possibility of reservations, and have therefore left the
issue to future resolution.”Under Article 17(1), the term of protection to be granted to performers under the Treaty is at least 50 years from
the end of the year in which the performance was fixed in a phonogram. Under Article 17(2), the term of
protection to be granted to producers of phonograms under the Treaty is at least 50 years from the end of the
year in which the phonogram was published, or failing such publication within 50 years from fixation of the
phonogram, 50 years from the end of the year in which the fixation was made.
(^60) Article 16 affords a generic vehicle for the adoption of exemptions or exceptions to rights conferred in the
Treaty. Article 16(1) provides that “Contracting Parties may, in their national legislation, provide for the same
kinds of limitations or exceptions with regard to the protection of performers and producers of phonograms as
they provide for in their national legislation, in connection with the protection of copyright in literary and
artistic works.” Article 16(2) provides, however, similar to the WIPO Copyright Treaty, that “Contracting
Parties shall confine any limitations of or exceptions to rights provided for in this Treaty to certain special cases
which do not conflict with a normal exploitation of the phonogram and do not unreasonably prejudice the
legitimate interests of the performer or of the producer of phonograms.”