Performances and Phonograms Treaty each make such rights express. However, the DMCA
does not set up separate rights of transmission and access, although the draft European Copyright
Directive would recognize such rights explicitly. Thus, the implementing legislative regimes
adopted by various signatory countries to the WIPO treaties may result in varying scopes and/or
denominations of rights, which runs contrary to the goal of the WIPO treaties to harmonize
copyright law in the digital environment throughout the world.
The ubiquitous nature of “copying” on the Internet raises other difficult issues. For
example, the practice of dividing copyright rights (such as the reproduction right, the public
performance right, and the distribution right) among separate rights holders, as is common in the
movie and music industries, will raise difficult issues of overlapping rights when a work is
exploited through the Internet, because the exercise of all such rights will involve the making of
“copies.” Licensees may therefore need to seek permission from multiple rights holders that
may not have been necessary in traditional media.^3386
Moreover, the traditional divisions of the bundle of copyright rights may no longer make
sense on the Internet. For example, it is common for different entities to hold the right to
reproduce copies of a movie, to distribute copies of the movie, and to grant licenses for public
performance of the movie. Under that division of rights, who has the right to make the movie
available on the Internet for on-demand viewing by users, since on-demand viewings will
involve the making of copies of the movie, the distribution of copies, and the public performance
of the movie? Or should it be the holder of the new right of transmission and access under the
WIPO treaties?^3387 Because of the overlapping nature of copyright rights when applied to the
Internet, new definitions and divisions of those rights will probably be necessary for online usage
of copyrighted works. Corresponding new economic and royalty models and industry practices
will also have to evolve. In the meantime, many existing licenses will be unclear as to which
entity has rights to control online usage of a work, and one can expect to see much litigation over
the interpretation of existing licenses.^3388
The global nature of the Internet may give rise to multiple territorial liability. If every
intermediate “copy” made during a transmission is considered infringing, there is the possibility
that a single transmission could give rise to potential liability in several countries, even countries
in which the sender did not intend or contemplate that its actions would result in the creation of a
(^3386) See Lemley, supra note 6, at 568-72.
(^3387) Because the new right of transmission and access in the WIPO treaties will be in addition to the other rights that
may be implicated by Internet uses of copyrighted works, these new rights can be expected to increase the
problem of overlapping rights. For example, existing licenses will be silent on these new rights, and there will
therefore be great uncertainty as to whether the licensor retains such rights, or whether the licensee has a license
under such rights and, if so, of what scope.
(^3388) See Lemley, supra note 6, at 572-74. One commentator has considered several possible ways of dealing with
the overlap of exclusive copyright rights that occurs on the Internet (placing the burden of overlap on the user;
placing the burden of overlap on the copyright owner; and establishing a new right of transmission over a
computer network that would replace the other rights to the extent they are applicable to network
transmissions). See id. at 578-84.