(II) the wipo internet treaties

46 Significant issues in the field of copyright have been examined for a number of years through various public and private processes, at WIPO and other international organizations, and at national and regional levels. Significant progress has been made, with international consensus having already emerged on some of these issues. In 1996, two treaties were adopted by consensus by more than 100 countries at WIPO: the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT) (commonly referred to as the “Internet Treaties”).⁷³ The treaties, each having reached their 30^th ratification or accession, both have entered into force: the WCT on March 6, 2002, and the WPPT on May 20, 2002.⁷⁴

47 The WIPO Internet Treaties are designed to update and supplement the existing international treaties on copyright and related rights, namely, the Berne Convention⁷⁵ and the Rome Convention.⁷⁶ They respond to the challenges posed by the digital technologies and, in particular, the dissemination of protected material over the global networks that make up the Internet. The contents of the Internet Treaties can be divided into three parts:

(1) incorporation of certain provisions of the TRIPS Agreement⁷⁷ not previously included explicitly in WIPO treaties (e.g., protection of computer programs and original databases as literary works under copyright law); (2) updates not specific to digital technologies (e.g., the generalized right of communication to the public); and (3) provisions that specifically address the impact of digital technologies.

48 The following paragraphs address: (a) the scope of rights protected under the Internet Treaties, highlighting new developments in response to digital technologies; (b) issues relating to enforcement and management of rights; and c) the status of implementation of the Internet Treaties internationally.

(A) Scope of Rights

49 The definition of rights, which determines their scope, is a key issue, as intellectual property is neither more nor less than the sum of the rights granted by law. Under existing treaties and national legislation, the owners of copyright and related rights are granted a range of different rights to control or be remunerated for various types of uses of their property. For both groups of rightsholders, these rights include rights of reproduction and of certain acts of communication to the public, such as public performance and broadcasting. The development of digital technologies, that enable transmission of works over networks, has raised questions about how these rights apply in the new environment. In particular, when multiple copies are made as works traverse the networks, is the reproduction right implicated by each copy? Is there a communication to the public when a work is not broadcast, but simply made available to individual members of the public if and when they wish to see or hear it? Does a public performance take place when a work is viewed at different times by different individuals on the monitors of their personal computers or other digital devices?

50 Perhaps the most basic right granted under both copyright and related rights is the right of reproduction, which under the Berne Convention covers reproduction “in any manner or form.”⁷⁸ This right is at the core of e-commerce, because any transmission of a work or an object of related rights presupposes the uploading of that work or object into the memory of a computer or other digital device. In addition, when the work or object is transmitted over networks, multiple copies are made in the memory of network computers at numerous points. It is therefore necessary to determine how the reproduction right applies to such copies.

51 In 1982, at a meeting of government experts co-organized by WIPO and UNESCO, a broad-based understanding was reached that uploading into a computer memory should be considered as an act of reproduction. This understanding was reconfirmed in 1996 in agreed statements to the WCT and WPPT, which state:

“The reproduction right…and the exceptions permitted thereunder, fully apply in the digital environment, in particular to the use of works in digital form. It is understood that the storage of a protected work in digital form in an electronic medium constitutes a reproduction within the meaning of the [relevant treaty right.]”⁷⁹

The appropriate application of the reproduction right in the case of temporary copies in computers’ random access memory (RAM) continues to be a subject of debate at the national and international levels. The key question is whether such copies always require the consent of the rightsholder in order to avoid infringement. Carefully tailored exceptions for such copies in certain circumstances have, for example, been enacted in the United States of America in the Digital Millennium Copyright Act (‘DMCA’),⁸⁰ and adopted by the European Community in its Directive on the harmonization of certain aspects of copyright and related rights in the information society (the E.U. Copyright Directive), both of which are described below.⁸¹

52 The WCT (Article 8) and the WPPT (Article 14) also clarify the extent of rightsholders’ control when works, performances and phonograms are made available to the public for downloading or access on the Internet. For example, Article 14 of the WPPT provides:

“Producers of phonograms shall enjoy the exclusive right of authorizing the making available to the public of their phonograms, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them.”

This type of transmission differs from broadcasting, in that the material is not selected and delivered by an active transmitter like a broadcaster to a group of passive recipients. Rather, it is transmitted interactively, that is, on demand from individual users, at a time and place of their choosing. The treaties require that an exclusive right be granted to control such acts of “making available,” while leaving it to individual countries to decide how to categorize this right under national law.

53 Issues related to moral rights are also given new importance in the digital environment, as the new technologies offer unprecedented means for users to manipulate or ‘morph’ copyright works, creating rights in derivative works, and possibly infringing the original authors’ moral rights of integrity. The WPPT (Article 5(1)) recognizes moral rights of attribution and integrity, as follows:

“Independently of a performer’s economic rights, and even after the transfer of those rights, the performer shall, as regards his live aural performances or performances fixed in phonograms, have the right to claim to be identified as the performer of his performances, except where omission is dictated by the manner of the use of the performance, and to object to any distortion, mutilation or other modification of his performances that would be prejudicial to his reputation.”